Category Archives: Second Amendment

The 2nd Amendment’s Forgotten Value

Calling to mind the 2nd Amendment’s original purpose broadens the gun rights debate to include the societal benefit of widespread gun ownership.

 

Type A – Scenario 1

A family with a 4 year old toddler pays a visit to friends.  The child wanders into the bedroom and finds a loaded pistol in the end stand drawer.  After a short time, he pulls the trigger and is killed.

Type B – Scenario 1

A mother who always picks up her 9 month old from day care in the late afternoon has a rare travel day at work and won’t be home until later in the evening.  Her husband makes arrangements to pick up the baby. It’s late July and the baby falls asleep on the way home in the air conditioned car.  The husband, anxious and focused on a late afternoon business call he needs to make from home, forgets the baby in the back seat of the car parked in the driveway. The baby is discovered two hours later but dies from heat exposure in the summer heat.

 

Type A – Scenario 2

A 45 year old man commits suicide with a shotgun.

Type B – Scenario 2

A 45 year old woman commits suicide with an overdose of prescription medication.

 

Type A – Scenario 3

An 18 year old man with a .45 caliber pistol sneaks into a school and kills 6 students before turning the gun on himself.

Type B – Scenario 3

An 18 year old man gets drunk at a party and, driving his new sports car at approximately 110 miles per hour, loses control in a turn and collides with an oncoming car occupied by 6 high school age students in a small SUV on the way to back from a ball game.  All occupants of both vehicles are killed.

 

Type A – Scenario 4

An isolated gunman perched in a hotel room above an outdoor concert in Las Vegas shoots and kills 58 people and injures hundreds more.

Type B – Scenario 4

Terrorists hijack two airplanes and crash them into New York City skyscrapers killing over 2600 people and injuring thousands more.

 

The public response to these two types of scenarios is different.  Type A scenarios, involving guns, meet with criticism and debate over gun policy and the value of certain types of guns for uses considered to be legitimate in contemporary political discussions.  Type B scenarios, involving automobiles, prescription medications, alcohol, cars specifically designed to attain speeds far in excess of any legal speed limit, and airplanes do not meet with any similar criticisms or debates about public policies addressing those instrumentalities or their value to society at large.

Discussions involving gun rights almost always focus on the value that individuals place on guns whereas the value of automobiles, airplanes, medications and even alcohol to society at large are not questioned.  Thus, when guns are instruments of human suffering, those who do not appreciate the right to keep and bear arms critique the ‘need’ for guns for individual purposes such as hunting and self-protection.  In contrast, because cars, planes, medicines and alcohol have achieved a broader recognition as being valuable to society at large, they are accepted as a fact of modern life as are the pain and suffering their use sometimes brings about.  The value of those devices to individuals is not subjected to the same scrutiny as guns.  Rarely, if ever, do we hear anyone question an individual’s ‘need’ to drink alcohol or drive many miles per hour in excess of the speed limit as part of a larger discussion related to alcohol or automobile deaths.

This is unfortunate.  The Second Amendment, like most of the Bill of Rights, was ratified because it was deemed necessary to society at large as a mechanism to preserve liberty.  The First Amendment right of a free press was ratified not to arbitrarily institutionalize the rights of newspapers, but because a free press was deemed necessary to preserving liberty.  Thus, the founders understood that a free press was a value to society as a whole.  The right against unreasonable searches and seizures wasn’t ratified to protect the rights of individuals to conduct criminal enterprises in their homes, it was ratified because arbitrary acts by government against its citizens cannot be condoned in any free society.  Barring unreasonable searches and seizures was understood to provide a benefit to society as a whole.

Somehow the debate over the Second Amendment has almost completely ignored its original “constitutional” purpose.  That purpose should be reintroduced into the debate.  Doing so will illustrate that the right to keep and bear arms is on par with the rest of the Bill of Rights as having been ratified because the founders recognized its value to society as a whole.  The right to keep and bear arms has at least as much societal utility as other common instrumentalities of death and severe injury such as cars, planes, medicines, and alcohol.

Like many highly intense political debates, the gun debate has often tended toward hyperbole, emotion, intellectual dishonesty and fallacious argument.  This might be even more the case with guns since the right to keep and bear arms is presently exercised and enjoyed by hundreds of thousands of citizens for uses that are not directly related to the initial purpose for which the Second Amendment was constitutionally preserved.  The debate is made even more convoluted because the initial response to atrocities involving guns is almost always emotional rather than well-reasoned, and always amplified by the national media who seek to capitalize on that emotional response to trigger the policy response they desire – severe restrictions on gun capabilities and on gun ownership.  Perhaps that’s why so little of the discussion ever finds its way to a primary focus on the actual reason the Second Amendment was adopted and ratified.  I hope a discussion of those issues will bring clarity and reason to the topic.  We need to start by being perfectly honest about what the Second Amendment right to keep and bear arms is all about.

 

The Second Amendment was ratified so that the people could have the means to defend against any effort to defeat their new constitutional republic.

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

The Second Amendment wasn’t adopted and ratified to protect individual uses such as hunting, sportsmanship or even personal defense.  It was ratified because the right of the people to keep and bear arms was deemed “necessary to the security of a free state” – to ensure that the populace remained armed in order to secure freedom in America.  It was ratified by the founding generation out of a sense of vigilance to defend against tyranny from any source, including from within our own new government.

Therefore, those who argue that a particular firearm isn’t necessary or useful for hunting, shooting sports, or personal protection are arguing against a false premise.  Their argument implies that the reason for the right to keep and bear arms relates to one or more of those uses.  Though these are understandably the reasons many contemporary citizens now so strongly support the Second Amendment, they primarily benefit individuals.  Hunting benefits the hunter and his family.  Shooting sports provide fun and healthy activity for the participants.  And personal defense benefits primarily the gun user and his or her family.

Couching the debate in terms of hunting, shooting sports or even personal protection diminishes the societal importance of the right, making it seem to be about individual prerogative, personal preference and individual freedom to partake in fun or personally useful activities.  This in turn slants the argument.  It’s relatively easier for Second Amendment opponents to make a case against gun rights if those rights are founded upon individually beneficial uses rather than upon the broader societal benefit of defending liberty itself.  In the ability of a free people to defend their freedom, the founders recognized that widespread gun ownership would benefit society at large.  Any contemporary debate regarding the Second Amendment should start with an analysis of its constitutional, socially beneficial purpose.

 

Keeping and bearing arms is a right of “the people”, not the militia.

Some argue that the language of the amendment implies that only members of a “militia” have the right to keep and bear arms.  This is a silly argument demonstrating either a willful attempt to confuse the question or a lack of knowledge of history combined with poor reading comprehension.  By the clear meaning of its plain text, the Second Amendment doesn’t bar the government from infringing on the rights of militia members to keep and bear arms. Rather, it bars the government from infringing on the right of “the people” to keep and bear arms, which makes perfect sense, because…

 

Everyone was “the militia”.

The militia was generally understood throughout colonial times up to and including the ratification of the Bill of Rights to include all citizens.  James Madison drafted the Second Amendment.  His initial proposed language was referred to a committee for review and revision.  That committee’s notes confirm this understanding of what constituted the militia. “A well-regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed…”  Any seeming inconsistency within the text of the Second Amendment arising from the apparent juxtaposition of the terms “militia” and “the people” evaporates once it is understood that the term “militia” referred to the whole of the people.  The founders sought to preserve the people’s right to keep and bear arms because it was the entire people who would naturally constitute any militia needed to defend their liberty from tyrannical threats.  Thus, it was “the people” who needed to be armed in order to defend freedom.

Having come to an understanding of what the right to keep and bear arms is really all about and why it was important enough to be included in the Bill of Rights all those years ago, we next need to examine and evaluate the right of the people to keep and bear arms in a modern context.  There are two questions that should be addressed before all others in any debate over the Second Amendment and what limitations might be placed upon it.

  1. Is the widespread ownership of firearms by citizens still an effective defense or deterrent against tyranny, and
  2. If so, what arms would be necessary, useful or potentially helpful to an armed citizenry pitted against unforeseeable tyrannical forces seeking to destroy their constitutional republic?

 

The right of the people to keep and bear arms remains an effective mechanism for achieving the goal of securing our freedom.

Simple common sense should be enough to convince any open minded person that an armed people are less vulnerable to tyranny – from within or from without – than an unarmed people.  By definition, millions of firearms in the possession of millions of citizens renders a nation more capable of defending itself against tyranny – and a much less appealing target – than a nation defended only by its standing army.  Moreover, should tyranny arise from within, a standing army might prove unpredictable, possibly even becoming an instrument of tyranny, rather than a defender of liberty.

Widespread gun ownership provides us with two simultaneous protections which we unfortunately don’t think about or recognize often enough.  First it provides the people their own independent defensive capacity in the event it is ever needed.  Second, that capability naturally constitutes a silent disincentive to anyone considering efforts toward imposing a tyranny between our shores.  Just as a large standing army with effective and modern equipment and weaponry is an effective deterrent to any potential foreign invader, widespread gun ownership in the hands of our citizens constitutes an effective deterrent to anyone scheming to divorce us from our constitutionally preserved liberties.

Detractors argue that an armed but largely untrained citizenry couldn’t hope to withstand the onslaught of a well-armed military force.  This argument exhibits a contemporary normalcy bias.  Who’s to say when a threat to American liberty will come and in what form?  Are we so arrogant as to think that in fifty or a hundred and fifty years we will still have the most powerful military forces on earth?  Do we assume that history will not march forward, changing societies as it has always done?  We cannot know the future.  It could unfold in many ways which would leave a well-armed population very well prepared to defend itself and thankful for the ability to do so.

Even if we were to assume a modern day effort by our own government to usurp the Constitution and impose a tyranny, why would we assume that the entire military would support such an effort?  Isn’t it more likely that many, if not most military personnel would join ranks with the people?  Assuming the unlikely worst case scenario – a modern day government usurpation completely supported by the military – is it not likely that they would be dissuaded from their effort by the widespread ownership of guns across the nation?  How might the fact that the people are well armed affect the decision making processes of a would be tyrant and what he thinks he can accomplish?  And if this contingency were to occur, are there really those among us who are such sheep that they wouldn’t prefer to be armed?

An armed population is obviously less vulnerable to tyranny.  The real question is how much we should value this protection.  Certainly there are many who don’t understand or appreciate the potential to the same degree as others.  If we were to have a national debate, those people could be expected to argue that the relative value of this protection as compared to the value of disarming the public in an effort to reduce incidents of mass shootings comes out in favor of disarmament.  This would be an honest debate, pitting the Constitution’s purpose and usefulness of the Second Amendment against modern eventualities that didn’t exist at the time the Second Amendment was ratified.  Upon examination, the anti-Second Amendment argument doesn’t hold up.

 

The societal costs of the right to keep and bear arms are substantially outweighed by the societal benefits that right provides.

The advent of mass shootings in schools is obviously big problem.  It is one indication that the societal costs of maintaining a widespread right to keep and bear arms is significant and seems to be growing.  Another is the ever increasing incidents of inner-city gun violence.  The reasons for the advent of this increased gun violence are often debated but for purposes of this discussion, not important.  The key point is that, for whatever reason, we have arrived at a point in society where what were once almost unimaginable atrocities involving guns are becoming more common at an alarming rate.   It’s therefore no surprise that those who don’t recognize a substantial value in the societal benefit of widespread gun ownership would favor restricting or eliminating gun rights.  But when that value is recognized and truly appreciated, it outweighs the suffering caused by accidental and intentional misuse of firearms.  That may seem harsh but it’s no different than the calculations we subconsciously make with respect to many tools and devices we use on a day to day basis and which are often instruments of death or injury.

There are many things that bring great convenience and benefit to society but are often instruments in human suffering or the loss of human lives.  Automobile accidents kill thousands annually.  Misuse of modern medicines results in hundreds of deaths and untold human suffering.  Plane crashes kill many dozens at a time and many hundreds over the course of a few years.  Modern machinery and equipment for work, home use and recreation maim and kill hundreds of people every year.  Yet no one suggests that automobiles, modern medicines, airplanes or modern mechanical equipment should be eliminated or even seriously restricted.  We intuitively understand that the value of these things is worth the pain and suffering their use sometimes brings about.

Moreover, the pain and suffering they help to avoid, though not seen, is generally understood.  We know that modern equipment makes work easier, helping workers to avoid repetitive injuries and wear and tear on their bodies.  We know that motor vehicles and airplanes make it possible to transport sick and injured people to hospitals quickly, distribute medicines all around the world efficiently and deliver food so regularly and timely we rarely even think about how we would function if we didn’t have them.  We know that the benefits of modern medicine outweigh the pain and suffering that results from their accidental or intentional misuse

Because we recognize this value, no one seriously suggests these devices should be banned or their ownership or use seriously curtailed.  Instead, we focus on training people to use such devices as properly and safely as reasonably possible and to continuously improve the safety of the devices themselves.  Unlike the argument against certain calibers of guns or large magazine capacities, no one argues that cars should be made safer by limiting their ability to travel faster than say, 25 miles per hour or by making them bigger and heavier so that they become far more expensive to produce and to operate.  Indeed, our governments often take the opposite approach requiring smaller and relatively less safe vehicles in order to save energy or limit carbon emissions.

In contrast, the value of widespread gun ownership in protecting a nation against tyranny is difficult to see and not so intuitive.  How we might ultimately fair as a free society without an armed citizenry isn’t so obvious, especially when most of us never bother to think about it at all.  The liberty preserving benefits of widespread gun ownership are largely invisible to us unless we make a conscious effort to think about it, teach it to our children, and appreciate it.

The right to keep and bear arms works its primary value to society somewhat like an insurance policy.  Once purchased, we don’t need to think about it much.  We can take it for granted, knowing that it’s there and will do what it was designed to do if we ever need it.  Similarly, a commitment to maintain the right to keep and bear arms, enables us to take for granted that we will have a built in force to defend our liberty if ever needed.  If we allow ourselves to forget about the importance of that benefit, it becomes far easier to discount the value of gun ownership in the face of gun atrocities.

The consideration of only individually beneficial uses such as hunting, shooting sports and personal protection makes the argument for Second Amendment opponents relatively easier.  Imagine how we might react to a plane crash killing dozens of people if we allowed ourselves to forget or ignore the broad societal benefits of air travel.  Anyone who values the role of the right to keep and bear arms for potential defense of liberty should try to force themselves to remember and appreciate that role whenever faced with the question of whether we should do something to restrict firearms in an effort to stem the tide of gun related violence.

Finally, it’s important to remember that those who want to eliminate or restrict the right to keep and bear arms don’t often make supportable arguments for their suggested restrictions.  We have every reason to be suspicious about their ultimate goals.

 

The concern that “common sense” gun reforms will set the right to keep and bear arms on a slippery slope is legitimate.

Second Amendment proponents fear that every move to effectuate new regulations or restrictions is only the first of many to come.  That fear is demonstrably justified.  Those who favor state power over individual liberty are nothing if not patient.  Incrementalism is a favored tool of the left and they wield it with expertise.

Statists wanted more government intervention in health care for decades.  They tried many times.  They were patient.  They never gave up.  With the Affordable Care Act, they finally got what they wanted.  What happened next?  The ink was barely dry on President Obama’s signature when the ACA’s inherent problems started to reveal themselves.  That was enough to trigger immediate calls from the left for a single payer system.  Those calls grow louder every day.  You can be sure single payer will be their focus for months and years to come.

As recently as a couple of decades ago, the gay rights movement was primarily about eliminating laws that were perceived to inhibit homosexuals’ ability to conduct themselves and live normal lives without interference from government.  The movement was focused on eliminating government imposed limitations or impediments in their lives.  In a relatively short period of time, it has completely morphed and is now focused on using the force of law to coerce others to act against their will at the risk of losing their livelihoods.  In just a handful of years, the focus of the movement went from eliminating laws that imposed unfair impositions on homosexuals to passing laws placing impositions on everyone else.

The well justified concern over a potential incremental chipping away at the right to keep and bear arms is redoubled when Second Amendment detractors are seen to so quickly pick up the banner of “SOMETHING MUST BE DONE” in the aftermath of every atrocity.  “Something must be done” almost always implies some form of rights restricting legislation with no clear affect on the atrocities sought to be addressed.  Shouting out in a knee jerk fashion for government restrictions on constitutional rights is no way to engender confidence that the measures being suggested are deeply considered, as minimally restrictive as possible and, perhaps most important, well-tailored to address the problem.  There is often no basis in reason or experience for the new restrictions they suggest.  Such thoughtless responses give Second Amendment proponents every reason to distrust those who urge the passage of restrictions which, on their face, would do nothing to ensure any reduction whatsoever in the number or severity of these atrocities.

Apparently President Trump has unfortunately embraced just such a response in advocating that persons under the age of 21 not be permitted to purchase rifles.  It’s difficult to imagine a better example of an emotional, “just do something” response which is as unlikely to have any recognizable effect whatsoever on the number or severity of gun crimes.  The personal characteristics of the most recent violent perpetrator cannot be the basis for the next restriction to be imposed.  Stripping all adults under the age of 21 of their Second Amendment right to purchase a rifle merely because the most recent perpetrator was under 21 and used a rifle is a response completely divorced from reason.  If this time we cede the rights of those under 21, who will be next?  Postal workers?  People who wear baseball hats?  The left handed?

The emotional, knee jerk reaction to strip adults under the age of 21 of a constitutional right merely because one of their number has committed a gun atrocity perfectly illustrates why every Second Amendment supporter should be wary that any new restrictions on the right to keep and bear arms are just the first of many to follow.  What reason is there to conclude otherwise?

Because we can’t know what atrocities have been avoided by existing legal restrictions, the focus is always on the atrocities that still do happen.  Were we to implement the restrictions often suggested in response to these atrocities such as eliminating under 21 purchases, AR-15’s and magazine capacities over 7, there would still likely one day be a scenario were a person over the age of 21 commits an atrocity with 3 or 4 concealed pistols and a dozen or so preloaded 7 round magazines.  He would have access to dozens of rounds and could kill or injure dozens of people.  Such an event will be followed by calls for further restrictions on magazine sizes and/or the number of pistols one individual can own.  This process of incrementally restricting gun rights would lead ultimately to the death of the Second Amendment by a thousand cuts, rendering firearms difficult to obtain, prohibitively expensive and/or of substantially reduced utility.

 

To be effective for its constitutional purpose, the Second Amendment must protect the rights of citizens to keep and bear high capacity arms and to do so without intrusion and substantial oversight by the government. 

In any defense against modern armaments, slingshots are better than throwing stones, .22 caliber single shot rifles are better than slingshots, a lever action 30-30 with a six cartridge capacity is better than a .22, and an AR-15 with a 30 round magazine is better than the 30-30.  Depending on the threat, other guns with varying capacities and capabilities may be the best suited tool for the job.  Because of advancements in armament technology a responsible citizen with the means might want to acquire sniper rifles and fully automatic weapons as well.  The constitutional purpose of the Second Amendment can only be weakened with each move to limit the types and capacities of firearms the law abiding public can obtain.

 

Conclusion

Gun atrocities justifiably give rise to a call for action.  But the answer isn’t to yield more of our liberty to the government by giving up or weakening the right to keep and bear arms.  We need the advantage that widespread gun ownership has always given us in remaining a free people, not to mention the added value of protecting ourselves and our families as needed.

Rather than yield our right to keep and bear arms, we should unleash American ingenuity and can-do spirit to protect potential victims and known targets of those who wish to perpetrate mass violence.  We should virtually eliminate “gun free zones”.  We should harden our schools including, as necessary, new building design to eliminate or minimize the opportunity for outsiders to gain access without vetting, metal detectors, permanently stationed officers and/or well-trained and armed teachers, custodians and administrators.

For whatever reason, times have changed.  What were once unimaginable atrocities are now our unfortunate reality.  Rather than arbitrarily and senselessly eliminating the constitutional rights of those under 21 to keep and bear arms, we should implement strategies and protocols which have a rational basis in preventing these atrocities or enabling them to be addressed more immediately when they do happen.  We have no hesitation in implementing such strategies for the protection of many other government owned buildings that have no similar history of being targeted by evil forces hell-bent on death and destruction.  At a minimum, those same measures should be employed in schools.

Finally, the primary constitutional utility of the right to keep and bear arms is the preservation of liberty.  Second Amendment supporters should boldly embrace that original purpose and advocate widespread gun ownership as a protection against tyranny.  Only when the debate over the Second Amendment includes the original constitutional purpose of the Second Amendment will the broader public begin to consider that the right to keep and bear arms provides benefits to society at large far beyond the individual benefits it provides to those who own guns primarily for their personal defense and enjoyment.

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In Defense Of The 2nd Amendment

In response to the Orlando terrorist attack, David S. Cohen penned this article which was published on Rolling Stone’s webpage.  It’s title, “Why It’s Time to Repeal the Second Amendment” is refreshing for its honesty.  Statists who wish to further empower government at the expense of individual liberty usually do so in small doses, with suggestions of ‘reasonable’ impositions on our liberties in order to give the government ‘just a little’ more authority over us in order to fix some perceived problem.  The goal is usually to induce us to take that first step out onto a slippery slope where we will then be expected to acquiesce to further incremental losses of our liberties.  Cohen’s call for the complete repeal of the 2nd Amendment is refreshing because it is honest.  No slippery slope here – he wants you to agree to an outright repeal of your right to keep and bear arms.

Unfortunately, the honesty is confined entirely to the title.  The body of this short article is filled with unsupported leftist propaganda.  Included are inaccurate criticisms of the Founders (they “enshrined slavery into the Constitution in multiple ways”); straw-man arguments against the perpetual perfection of the Constitution (no one seriously argues that the Constitution is perpetually – or temporarily – perfect); a leftist checklist for how the Constitution might be improved (an equal rights amendment, Senate representation based on population); and misdirecting arguments about gun control which avoid discussing the reason the 2nd Amendment was proposed and ratified (firearms are capable of more damage than the founders could have imagined; the risks of the right to keep and bear arms now outweigh the benefits; though Cohen offers no analysis or comment on what the benefits are).

Though Cohen has posited several assailable propositions in just a few sentences, one who wishes to clearly and demonstrably refute them is forced to do so in substantial detail.  The refutation necessarily takes more time, and words, than does the statement of the simple proposition.  For that reason, I’ll limit my criticism to only one aspect of Cohen’s article…the conflation of ‘liberty’ and the ‘right’ to be safe and secure.

Statism cannot prevail for long where liberty is understood and appreciated.  Statists know this.  For that reason, they’ve gone to great effort over the years to muddle the definition of the word ‘liberty’ in order to introduce confusion. We see this tactic utilized in Cohen’s article.  He wrote:

“Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights.  But liberty is not a one way street. … It includes the liberty to…go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned down by someone wielding a weapon that can easily kill you and countless others.  The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered.”

Cohen misunderstands and therefore misrepresents liberty.  ‘Liberty’ connotes the relationship between government and citizens.  It involves the question of what impositions the sovereign can place on the freedom of citizens.  It has no place in any discussion regarding citizens’ actions among each other. The usage of the word ‘right’ in the context of interactions both between and among individuals and between individuals and government has possibly helped to further this confusion.  A good case in point is the 2nd Amendment itself which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Thus, the right to keep and bear arms, like the right not to incriminate oneself, and the right to free speech, is a liberty because the government is restrained from limiting or regulating our autonomy in that regard.  In contrast, the right not to be murdered by a fellow citizen is not a liberty because it does not involve the misplaced force of government.

When Cohen attempts to place the ‘liberty’ to keep and bear arms in the same context as the ‘right’ not to be murdered, he implies a false equivalency between liberties (from government intrusion) and rights (vis-a-vis fellow citizens).  These concepts are not one in the same.  Statists hope that the casual or uncritical reader will accept this false equivalency and perform their own balancing test between a real liberty (the government can’t infringe on gun ownership) and a right mislabeled as a ‘liberty’ (not to be murdered by a fellow citizen).  Faced with that deceptive choice, some would quickly determine that that the ‘liberty’ not to be murdered is more important that the liberty of keeping and bearing arms.  Thus, statists hope that the failure to understand and appreciate the difference between liberty from governmental intrusion and a right not to be murdered by a fellow citizen will lead one to embrace the notion of voluntarily yielding liberty in exchange for a mere promise of better security and safety.  While some would suggest that such a trade-off is advisable, one should come to that conclusion only after coming to a full understanding of what the tradeoff is – real liberty for a mere promise of security – rather than what Cohen portrays it to be – yielding one liberty to enhance or protect another.

Once properly understood, the proposition that the 2nd Amendment should be repealed gives rise to some obvious questions which should be carefully considered before yielding a liberty which has been held inviolate since the founding of the country.

  • How will the government meet its promise of providing better security?
  • What basis does the government have to suggest that we will be safer without the right to keep and bear arms?
  • If we yield our right to keep and bear arms, we’ll be less secure in our own homes.  How will the government replace the personal security we can now provide for ourselves and our families?
  • Once we amend the Constitution to eliminate our right to keep and bear arms, it will be very difficult if not impossible to turn back.  What if it doesn’t work and we end up less secure as a result of the fact that we may be prohibited from owning guns to protect ourselves?

Finally, we must keep in mind the real reason the 2nd Amendment was ratified in the first place – not for hunting, target shooting or even home defense, but to safeguard against tyranny.  Just a few short decades ago authoritarian tyranny was rampant in the world.  Today it still exists, though in smaller, often ignored pockets.  But throughout all of human history, authoritarian tyranny has prevailed.

Over the course of the decades since World War II, democratic governments across the world have acted to restrict the liberty of their citizens to keep and bear arms.  As such, America stands as the last major western democratic nation where the people have retained that liberty.  We once learned and should now remember the horrible consequences that can befall an otherwise free people when their liberty to keep and bear arms is breached.  We should not be so cavalier as to yield our liberties when times are such that they may not seem to be crucial.  The liberty to keep and bear arms is crucial and will always be crucial because times change. History is not static.  We must maintain that particular liberty in order to have any hope of maintaining all our other liberties should the day come when it is necessary to defend them.  If we yield the liberty to keep and bear arms, all others will be placed in a state of perpetual jeopardy and we will have willingly exposed ourselves to all that history should by now have taught us to guard against.

 

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Beyond The Right To Carry Firearms

Judging from social media comments, there is a lot of misunderstanding concerning the recent ruling by the 9th Circuit Court of Appeals in Peruta v. County of San Diego.  The purpose of this article is to clear up the some of the confusion and to call attention to a potential scenario whereby the question of the 2nd Amendment ‘right to carry’ might ultimately be used by the left in an effort to damage the Constitution beyond the 2nd Amendment.

In Peruta, the 9th Circuit ruled that there is no 2nd Amendment right to carry a firearm in public.  The states comprising the 9th circuit are: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.  Because Peruta is a decision by the 9th Circuit, it affects only those states.  Importantly, it does not make carrying a firearm illegal in those states.  It doesn’t nullify or void or de-constitutionalize any 9th Circuit member states’ laws permitting citizens to carry.  It merely states that there is no individual 2nd Amendment right to carry a firearm.  Thus, states may choose to disallow carrying a firearm, but they are not required to do so.  Any state in the 9th Circuit which chooses to permit carrying may do so.  That has not changed.  And the 9th Circuit decision has no direct legal effect at all in any state outside of the 9th Circuit.

Of course, that is not so say that the Peruta decision is no cause for concern outside of the 9th Circuit.  If a citizen’s rights are infringed, we should all be concerned.  Similarly, anytime an American court attempts to justify perceived impositions upon constitutional rights, we rightfully worry about the rule of law and the continued diminishment of our Constitution.  Finally and most importantly, the practical ramifications of the 9th Circuit decision might be more profound and much more imposing than would initially appear.

In the event the Peruta decision is accepted on appeal by the Supreme Court, or a similar case from another Circuit results in such an appeal being accepted by the Supreme Court, then the Supreme Court will have the opportunity to decide for the entire nation what, if any constitutional right individuals have to carry firearms.  Were the Supreme Court to issue a decision in accord with the holding in Peruta, there would be virtually no individual constitutional right to carry a firearm, whether concealed or open carry.  Any state could legislate stringent restrictions or virtual bans.  But again, they would not be obliged to do so.  A rights respecting state would still have the ability to enable individuals to carry firearms despite the ruling that they have no 2nd Amendment right to do so.  There is however a larger concern in the event all three branches of government align.

‘The Supremacy Clause’ of the Constitution is contained within Article 6 which provides in part that the “Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  The Supremacy Clause made perfect sense when drafted because there was an expectation that the powers of the Federal government, limited as they were by the Constitution itself, would remain limited.  The founders expected that any significant attempt by the Federal government to illegally expand its power would by rebuffed by the states and by the people.

The New Deal era ushered in a new age in Federal Government power.  As I wrote more extensively here, a Supreme Court which had been a stalwart protector of the Constitution against overreaching New Deal legislation, became compliant to Congress and FDR almost overnight.  Where it had typically used judicial review of federal legislation to limit the Federal Government to its constitutional sphere, it began reinterpreting the now ‘living’ Constitution so as to enable a massive expansion of Federal Government power.  One of its favorite and well-worn avenues for doing so was the misinterpretation of ‘The Commerce Clause’ of the Constitution.

Article 1, Section 8 of the Constitution specifies Congress’s powers.  Included is the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The Commerce Clause was intended to enable Congress to regulate trade among the states so that it could be normalized and in order to avoid trade conflicts between and among the states.  For decades that’s how it was utilized and interpreted.  Only after the advent of the ‘living’ Constitution, did the Federal Government use the Commerce Clause to justify the widespread intrusion upon myriad private economic and personal relationships between and among individuals – and the Supreme Court rubberstamped virtually every expansion for decades.

Finally, in 1995 the Supreme Court decided the case of Lopez v. United States.  In Lopez, the Court considered the constitutionality of the Gun-Free School Zones Act of 1990.  The Act made it a crime to knowingly possess a firearm at a place that the person knows, or has reasonable cause to believe is a “school zone”.  The statute in no way purported to regulate a commercial activity, nor did it require any link between the possession of the fire arm or the fire arm itself, to interstate commerce.  The sole basis asserted for constitutional authority was that possession of a firearm in a school zone ‘substantially affects’ interstate commerce.

In its effort to defend the statute, the government argued that a firearm may result in violent crime and that violent crime in and around a school could be expected to affect the national economy in two ways.  First, the costs are substantial and those costs are ultimately spread throughout the entire population.  Second, violent crime reduces the desire or willingness of individuals to travel to areas deemed unsafe.  Also, guns in and around schools could damage the learning environment ultimately resulting in a less productive economy.  Based on this reasoning, the government contended that Congress had a rational basis to conclude that the statute would substantially affect interstate commerce.

The opinion was authored by Justice Rehnquist.  Justices Thomas, O’Connor, Scalia and Kennedy joined in majority for the decision.  The opinion  identifies several prior cases where the Court found Federal legislation to be authorized under the Commerce Clause and argues that each involved an economic activity that substantially affected commerce.  Specific examples provided are Hodel (“intrastate coal mining”), Perez, (“extortionate credit transactions”), Katzenbach (“restaurants utilizing substantial interstate supplies”), Heart of Atlanta (“inns and hotels catering to interstate guests”) and the infamous Wickard v. Filburn (“consumption of homegrown wheat”).  The distinguishing factor in the Court’s decision to disallow the Gun-Free School Zones Act was the notion that the activity regulated was not commercial or economic activity.  With Lopez, the Court finally drew a line in the sand beyond which it would not permit to Congress to use the misinterpreted Commerce Clause to legitimize an expansion of Federal power.  If activity isn’t commercial or economic, the Commerce Clause won’t be read to authorize Congress to regulate it.

To be sure, the statists who desire an ever expanding Federal Government would like nothing more than to overturn Lopez and return the misinterpreted Commerce Clause to its former status as an infallible and infinite source of federal power – which brings us back to Peruta and its potential aftermath.  One can foresee a two stage effort statists might employ to simultaneously achieve two goals; erode the 2nd Amendment and overturn Lopez.

The first stage would employ an appeal to the Supreme Court in an effort to nationalize the Peruta decision or some variation of it.  The end goal would be a Supreme Court decision declaring that there is no 2nd Amendment right to carry a firearm, whether concealed or open carry.  If that effort succeeds, the second stage would employ Federal legislation, purportedly authorized by the Commerce Clause, to make concealed carry illegal nationally.  Because of the Supremacy Clause, any such legislation would override any state legislation recognizing the legality of concealed carry.

Of course, the Federal law banning carrying nationwide would necessarily result in an appeal to the Supreme Court based on Lopez.  It’s one thing for the Supreme Court to have ruled in the first stage that there is no 2nd Amendment right to carry.  It’s another thing altogether for Congress to assert the authority at the Federal level to ban carrying firearms.  Lopez established that there is no such authority under the Commerce Clause.  Thus, the left would seek to overturn Lopez.  If successful, the statist effort could result in a Supreme Court decision that both recognizes the legitimacy of Federal legislation outlawing the carrying of firearms and overturns Lopez thus reopening the font of illegitimate federal power that was the misinterpreted Commerce Clause.

I’m not predicting this scenario will come to pass or even that statist forces will make the effort.  But if the day comes when statists judge that the Supreme Court would seriously consider nationalizing the Peruta decision and overruling Lopez and that Congress would pass national concealed carry legislation, it would be extremely naïve to believe that they wouldn’t make the effort.  The left is nothing if not patient and should be expected to make this effort when the time is right even if not for many years.  Those who would defend the Constitution, federalism and individual liberty should be mindful of such a strategy and vigilant if circumstances develop which tend to indicate such an effort is underway.

 

 

 

 

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Roseburg Oregon, Human Emotion & The Second Amendment

Within a few hours of the shooting yesterday in Roseburg, Oregon, President Obama took to the microphone for his predictable demagoguery on the issue of gun control. Whenever such a crime occurs, he and others who support restricting or eliminating our liberty to keep and bear arms can be counted on to make an almost immediate appeal to the public’s understandable emotional response to such irrational violence. At the time of his comments, there were absolutely no details available upon which he could judge that adoption of some restriction or regulation would have prevented the shooter from acquiring guns. But that didn’t stop him from pontificating regarding the need for unspecified gun control.

“The notion that gun violence is somehow different and our freedom and our constitution prohibits any modest regulation of how we use a deadly weapon when there are law-abiding gun owners all across the country who can hunt, protect their families, under such regulations, it doesn’t make sense… Each time this happens, I’m going to say, ‘We can actually do something about it.’ But we’re going to have to change the laws. I’ve got to have Congress, state legislators, governors who are willing to work with me on this.”

The obvious chasm between the unknown facts regarding how the shooter obtained guns and the call for “modest regulation” and a “change” in “the laws” in order to “do something about it”, is far too wide for any tortured logic to span. He might as well have said, “we don’t know how this shooter obtained his guns, but we need legislation to stop anything like this from happening again”. Barring a complete ban on guns, what does that mean? Obama doesn’t need to concern himself with whether his call for gun control makes sense for two reasons. First, he is making an appeal to emotion rather than reason. Second, he can count on the main stream media to ignore the fallacy of his argument, or more likely, reinforce it.

Those who seek to curb our liberties often complain that Second Amendment advocates aren’t willing to engage in ‘common sense’ compromise in order to ‘stem the tide of senseless violence’. Notwithstanding the fact that they rarely support their arguments with the pesky details of how their proposals will stem gun violence, they ignore the fact that compromise is not always a good thing. ‘Compromise’ is a blessed word in American politics and is often invoked in the spirit of ‘getting things done’ and ‘avoiding gridlock’. When it comes to our liberties, ‘compromise’ is an evil word. ‘Getting things done’ always means yielding more of our liberty. When it comes to maintaining freedom, gridlock is good.

Since the advent of the New Deal, America has a long history of diminishing individual liberty ostensibly in exchange for coercive legislation which is always promised to make American life better and more productive. In reality, the impositions on our liberties have led to a lower standard of living and have created an administrative leviathan which is ever expanding and utterly unproductive. We should learn from past mistakes and keep an iron grip on our remaining liberties, including the Second Amendment right to keep and bear arms. We should identify emotional demagoguery for what it is, a cheap, unsupported appeal for our acquiescence in the usurpation of our freedom. We should insist on well-reasoned position statements from our political representatives. When those who seek to persuade us to yield our rights ultimately make specific proposals for “common sense” gun legislation, we should insist that they explain exactly how such legislation would have stopped any of the mass shootings they so often use as an emotional springboard to launch their efforts against gun liberty and how they will prevent such violence in the future. Without exception, we’ll find their logic is lacking.

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A Tax On Guns And Liberty

The ‘Civil War Amendments’ (Amendments 13, 14, and 15) were swiftly adopted and ratified after the close of the Civil War in order to constitutionalize the full citizenship and equal protection under the law of former slaves and their progeny.  Unfortunately, state induced discrimination continued.  The ‘poll tax’ was one of the many manifestations of the “legal” discrimination of blacks via ‘Jim Crow’ laws.  The point of the poll tax was to prevent blacks from exercising the franchise, thus eliminating their participation in our system of self-governance.  Because the franchise is fundamental to citizenship in a self-governing political system, the poll tax was nothing less than an effort to diminish the citizenship of blacks then guaranteed by the Constitution as amended.  Ultimately, the poll tax was a tax on democratic participation.  The Supreme Court rightfully held in Harper v. Virginia Board of Elections that state poll taxes are unconstitutional because they violate the 14th Amendment.

The city of Seattle recently imposed a tax on the purchase of any gun or ammunition within the city’s limits.  The tax is unique to guns and ammunition, applying to the purchase of no other goods or services.  By design, the tax would increase the cost of gun ownership and use, thus discouraging purchases and negatively affecting citizens’ ability to acquire and use firearms.

America’s founders recognized the necessity of the right to keep and bear arms in establishing and maintaining liberty.  Richard Henry Lee wrote that “to preserve liberty, it is essential that the whole body of the people always possess arms…” As a result, they adopted and ratified the Second Amendment, thereby making the Constitution expressly recognize and protect the right to keep and bear arms.  Because the right to keep and bear arms is fundamental to liberty and its preservation, the gun tax is nothing less than an effort to diminish liberty.

The National Rifle Association, the National Shooting Sports Foundation and the Second Amendment Foundation along with others, have filed suit against Seattle in order to seek a judicial determination that the gun tax is illegal because, among other reasons, it violates the 2nd Amendment right to purchase guns and ammunition and thus, to keep and bear arms.  Just as the poll tax was an unconstitutional impediment to the constitutional right to vote, the gun tax is an unconstitutional impediment to the constitutional right to keep and bear arms.  The NRA should prevail in its lawsuit and the Court should rule that the Seattle gun and ammunition tax is unconstitutional as it violates the 2nd Amendment.

 

 

 

 

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