Thursday, April 14, 2016

Of Course the Second Amendment Protects an Individual Right to Keep and Bear Arms

By David French — April 13, 2016

Progressives like to insist that the Second Amendment to the U.S. Constitution protects a collective, rather than an individual, right to “keep and bear arms.” Or, put another way, they say that the only right Americans have to the ownership of lethal weaponry exists within the context of state-sanctioned military service. As a result, progressives conclude that there is nothing in place to stop the federal government from prohibiting the private ownership of firearms and allowing access to weapons only to those who belong to the National Guard — the modern descendant of early-American state and local militia forces.

In 2008, the Supreme Court decided the landmark case of District of Columbia v. Heller, ruling — by a bare 5­–4 majority — that this relatively recent view is incorrect. The Second Amendment, the majority concluded, protects the rights of the individual.
Justice Scalia, the author of the Heller opinion, died in February of this year, and the Court is likely to remain deadlocked on the Second Amendment until he is replaced. This explainer outlines the textual, historical, and philosophical reasons why the next Supreme Court must uphold Heller and continue to recognize the individual right to keep and bear arms.

The text of the Second Amendment supports the existence of an individual right.

Proper constitutional analysis always begins with the actual words of the document. The Second Amendment states: “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.”

As Justice Scalia noted in his Heller decision, the amendment contains both a prefatory clause and an operative clause. The prefatory clause, a common feature at the time of drafting, does not limit the operative clause; rather, it explains its purpose.

The operative clause is, of course, clear: “the right of the people to keep and bear arms, shall not be infringed.” As Scalia correctly observed, every other time the original, un-amended Constitution or the Bill of Rights uses the phrase “right of the people,” the text “unambiguously refer[s] to individual rights.” Further, the language clearly indicates that the amendment wasn’t creating a new right but recognizing a pre-existing individual liberty — one that is referenced in the 1689 English Bill of Rights. The language “shall not be infringed” indicates recognition, not creation.

But what about the prefatory clause? What does the a “well regulated militia” have to do with an individual right? Scalia explained well in Heller:
The Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.
To believe that the Second Amendment is a collective right, Scalia concluded, is to believe that the authors of the Bill of Rights employed individualist language in order to protect the people’s right to take part in militia organizations over which the national government enjoys plenary power.

Naturally, neither the Constitution nor the Bill of Rights spells out every individual liberty. (Indeed, the Ninth Amendment declares this quite clearly, saying, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) But, in the face of pressure from those who were skeptical of the new government, a few core rights were given special protections to which the people might appeal if the government attempted to take them away. As explained below, the colonists remembered the English king’s tyrannical efforts to suppress liberty in part through the confiscation of arms. The Second Amendment was the response.

The historical record unequivocally supports the existence of an individual right.

It is critical to remember that the Founding Fathers were Englishmen before they were Americans. When they began to sow the seeds of revolt against the British crown, they sought not to destroy all that had gone before but to protect rights that they believed they already possessed. Thus, when George III responded to unrest by attempting to disarm rebellious colonists, he “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms,” Scalia wrote. (“Arms,” incidentally, did not mean only “muskets” but included any personal weapon that could be wielded by an individual, including but not limited to “musket and bayonet,” “side arms,” and “sabre, holster pistols, and carbine.”)
Justice Scalia understood this well:
By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence.” Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. (Citations omitted.)
Writing in 1803, after the ratification of the Bill of Rights, St. George Tucker updated Blackstone’s Commentaries. In America, Tucker wrote, “the right of the people to keep and bear arms shall not be infringed . . . and this without any qualification as to their condition or degree, as is the case in the British government.” The United States, he boasted, “may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”

Similar explanations were forthcoming from all of the major jurists of the era, including William Rawle and Joseph Story. There are no published arguments to the contrary.

Not all colonists owned guns. But it is well established that guns were widely owned and widely used in colonial America. Frankly, the assertion that there was no right to own a weapon would have utterly mystified the American colonist, who would have rightly seen such a notion as dangerous to his independence and to his life. As free men have argued since the days of Justinian, every individual enjoys an inalienable right to self-defense. To strip him of access to arms is, effectively, to strip him of the capacity to exercise that right. For an example of this, one needs only look at the Reconstruction-era South, in which whites were helped along in their domination of freed blacks by laws that deprived former slaves of their guns.

And that brings us to the final, critical point.

Natural law supports the existence of an individual right.

One cannot analyze the Second Amendment without understanding its moral and philosophical underpinnings. Colonial America was a land populated by people who were both highly literate biblically and steeped in Lockean philosophy.

The biblical record sanctioning self-defense is clear. In Exodus 22, the Law of Moses permits a homeowner to kill even a mere thief who entered his home at night, and the books of Esther and Nehemiah celebrate the self-defense of the Jews against their lawless attackers. Nehemiah exhorted the Israelites to defend themselves: “Remember the Lord, who is great and awesome, and fight for your brothers, your sons, your daughters, your wives, and your homes.” The oft-forgotten climax of the book of Esther is an act of bloody self-defense against a genocidal foe.
Nor did Jesus require his followers to surrender their lives — or the lives of spouses, children, or neighbors — in the face of armed attack. His disciples carried swords, and in one memorable passage in Luke 22, he declared there were circumstances in which the unarmed should arm themselves: “If you don’t have a sword, sell your cloak and buy one.” Christ’s famous admonition in his Sermon the Mount to “turn the other cheek” in the face of a physical blow is not a command to surrender to deadly violence, and it certainly isn’t a command to surrender family members or neighbors to deadly violence.

In his Second Treatise of Civil Government, Locke described the right of self-defense as a “fundamental law of nature”:
Sec. 16. The state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. (Emphasis added.)
Moreover, Locke argues, these laws of nature were inseparable from the will of God:
The rules that they make for other men’s actions, must, as well as their own and other men’s actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.
This right is so fundamental that it’s difficult to find even leftist writers who would deny a citizen the right to protect her own life. Yet at the same time, many would deny Americans the right of effective self-defense by leaving their ability to own and carry a weapon to the good graces of the government. Alas, fists are notoriously ineffective against armed criminals, and they are wholly useless against a tyrannical state.

What are the stakes?

The next Supreme Court justice will hold the balance of power in the next Second Amendment case, a case that could either reaffirm the textual, historical, and philosophical meaning of the Second Amendment, or rewrite history and undermine a fundamental right of a free people. Any judicial ruling that rejects an individual right to keep and bear arms would permit any future liberal majorities in Congress to pass draconian gun-control bills, including potential confiscation of weapons.

The fight for the Second Amendment isn’t a fight over statistics but rather first principles. Our Founders recognized the right of self-defense — including defense from tyranny — as one of the indispensable individual liberties of a young republic. It is just as indispensable today. 

Read More on National Review
External Resources
• “A Critical Guide to the Second Amendment” (Glenn Reynolds)
• “The Commonplace Second Amendment” (Eugene Volokh)
• “Miller, Colt .45s and Natural Law” (David Kopel)
• “The Second Amendment Is a Gun-Control Amendment” (Adam Gopnick)

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