A friend asked me to write a defense of my individualist view of gun rights.
So here it is (this is an email, not a real essay, so go easy on me):
Okay, I’ve never really written about this, nor is it really my area of expertise, but here’s my best shot. (the following arguments are awesome, but not necessarily in comprehensible order or grammar.)
First thing I think is that government does not legitimately hold any power or rights that haven’t been delegated to them from the people – which had to possess them in the first place in order to delegate them. Hence, it is legitimate for government to have the power to defend our rights, since we have the natural right to defend them ourselves. It’s just a technicality that we’ve decided to create this government security force to protect them too. However, one can not just then turn and use that security force for the purpose of denying other people’s rights, since we the people don’t have that power ourselves to delegate.
The people have a right to educate their kids. They have a right to delegate that power to the government. That doesn’t mean the government then has a right to claim a monopoly and ban private or home schooling. It seems like the same thing to me.
Guns exist, they won’t be uninvented, people have them, and to take them away would simply be stealing. No different than banning and confiscating their kids, candlesticks, bicycles, books, drugs or any other property.
The second amendment:
Hamilton argued that there shouldn’t be a bill of rights because that was what a king would grant his subjects. In our case the people are the kings and they have granted enumerated powers to a government they are allowing to exist, and so if the constitution doesn’t grant the federal government the authority to establish a church or ban speech, guns, privacy, etc. then they had nothing to worry about since those powers’ exercise would be unconstitutional and so null and void.
They didn’t trust him and insisted on a list of “declaratory and restrictive clauses” to prevent “misconstruction or abuse of [the new government’s] powers” as a condition of ratification.
So the second amendment doesn’t give or even recognize a right, it is a restriction against the national government power by people who are telling it what their rights are and that they must never be violated, and that on the condition the government accepts that restriction it may be allowed to exist.
I’m not able to cite all the chapter and verse of the federalist papers off the top of my head – Madison, #46? – but I know that the founders and the law considered the “militia” to mean all able bodied males. While they were allowing the new government the power to create an army and call the militia into service, they were not intending to cede all such authority to DC, nor could they possibly do so since the militia was the people themselves. And if Article II grants congress authority over the organization of the militia and only the collective militia itself has the right to bear arms, then the second amendment’s purpose is to protect the right of a state entity that congress can abolish at will? That would seem odd. Especially since in the constitution, the term “right” is always associated with people, “power” is used when referring to the states or general government.
Besides, the “reason why” clause is not restrictive, only descriptive. (The most important part of the “reason why clause is the “free” part, not the militia part.) The law is in the meat of the thing: the right of the people to keep and bear arms shall not be infringed. And they deliberately chose Not to include language including “for the common defense,” recognizing the dual role arms play in providing for individual as well as collective defense. Many of the state constitutions have explicitly recognized both from the beginning of the union. And nowhere in the bill of rights does the word people mean anything but people. The 10th amendment addresses the people and the states separately. In fact, never in the whole constitution are the state governments referred to as “the people.”
There wasn’t much controversy over any of these definitions at the time. Men already owned guns across the society. It was the furthest thing from their minds that they had just created a new government with the power to take their weapons away from them.
The people of that era had just fought a revolution and all the founders – even including Hamilton – recognized that the purpose of the protection of gun rights was that the people could again “protect themselves from tyranny in government” with them if worse came to worse.
Virtually all courts across the land were in agreement on this until the wholly inconsistent and contradictory Miller decision in 1932 which said that all men were the militia, but only arms for suitable for use in the militia were protected. So only machine guns, but not pistols? Then they upheld the conviction saying that the sawed off shotgun in question wasn’t a military weapon, when in fact they were used widely in the last war at the time – WWI, where they were known as “trenchsweepers.” So the Miller decision was on crack, but got this whole business started about the “right” of state legislatures to keep national guard troops at the ready to be sent to the middle east to kill people for the national government.
The national guard is not the militia, by the way. They were created under the power of the national government to raise and support armies, not the one about calling forth the militia.
I think one of the only reasons using guns to defend liberty on a wide scale hasn’t been necessary thus far is the fact that there are already so many to be used in such a situation. After all, the law no longer binds their power, what else is keeping them from organizing the worst Orwellian police state one can imagine? (Okay, well, maybe they’re out of money too…)
Plus if you ban them, you just create a massive black market and turn the whole business over to the worst criminals instead of law abiding gun-dealer folk.
And another thing: the whole history of this goes back to the rich and white using gun laws to oppress the poor and brown. And that is exactly how gun laws are enforced today in fact. More laws would only make that worse.
Men – especially governments – cannot be trusted with guns. That’s why everyone should have them.
Best,
Scott
PS: I’ve never been a gun owner. I’m just sayin.
