Friday, January 4, 2013 | 2 comments

The Right to Bear Arms

By Jeremy Lyman

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The second paragraph of the Declaration of Independence begins with this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

It goes on to affirm that the only proper role of government is to protect these “unalienable” rights. It is important to understand the significance of these pronouncements.  Note that government does not grant these rights.  Government is not the originator of these rights.  These rights are innate.  They are natural.  They are God-given.  They are unalienable.  Even those that do not believe in God must recognize that men have these rights naturally and that they are not granted to them by other men.  On what premise would one argue that some men are superior to others and should have the power to grant or take away their rights?

It is with this simple concept in mind that we will examine the right to bear arms.  In a previous post  I argued that essentially “all of our natural rights are an extension of private property rights.”  A discussion about the right to bear arms could rightly be centered around private property rights, individual liberty, or even states rights.  These rights are born of the same basic principles and are intertwined with each other.  Each one supports the other and none of them conflicts with the others.  Firearms are private property and men have the right to use force to protect their rights, including their private property.  Individual liberty requires that men have the right to make their own decisions and to affect their own destiny.  The states should stand between their citizens and the federal government when the latter usurps powers not granted to it in the Constitution and when it attempts to violate the rights of the people.

Many supporters and defenders of the right to bear arms refer to the second amendment.  There is nothing wrong with this per se, but I think it’s worth taking a closer look.  Many of the founding fathers, including James Madison, James Wilson, and even Alexander Hamilton (among others), thought that the Bill of Rights was superfluous and unnecessary.  They rightly held the view that the federal government was specifically restricted to the powers granted to it in the Constitution.  There should be no need to list the powers that the federal government does not have.  They are infinite and include every power not specifically granted by the Constitution.  It would be like asking a street vendor who has five items on his menu to also list the items that he does not have.  The list would never end.

Even though the Bill of Rights was ultimately adopted, its inclusion did not necessarily change anything.  The Bill of Rights simply listed some of the things that the federal government was already prohibited from doing.  Some thought these items were so important that they needed to be spelled out specifically just to make sure there was no question.  It is debatable whether or not this was a good idea.  The inclusion of a few specific items might make it easier for the federal government to get off track in other areas.  After all, since these items are listed out, it might make it easier to argue that other items that were not listed might not be off-limits.

Whatever the case, let’s review natural rights.  They exist naturally before any discussion of government or a constitution begins.  The Constitution granted a few, limited powers to the federal government.  Even without the Bill of Rights, those limited powers would not authorize the federal government to violate any natural rights.  Since no man or group of men had a superior authority to violate the rights of other men, they could not authorize any government to do so, through a Constitution or otherwise.  The Bill of Rights listed a few of the important areas in which some of the founders wanted to be very clear that the federal government could not  intrude, and one of those areas was the right of private individuals to possess firearms.

The Second Amendment reads: “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.”

There has been and continues to be much debate about the meaning.  What is a militia?  What does it mean to be well regulated?

Before even attempting to begin to answer those questions, I want to point out that it really doesn’t matter.  Nowhere in the Constitution was the federal government granted the right to restrict individuals from owning, possessing and using firearms.  There is no basis upon which an institution of men can rightly restrict the natural rights of other men, and the Supreme Law of the Land certainly did not attempt to authorize the federal government with any such power.  The second amendment, along with the other nine included in the Bill of Rights, did not grant any rights, and in truth did not restrict the federal government any more than it was already restricted.  So here we have come full circle.  Men are born with the right to defend themselves and their property and lives.  It is their natural right.  It exists not because of government or the Constitution, but in spite of them. Men held this natural right before the Constitution was drafted. The men who drafted and ratified the Constitution had no authority to arbitrarily violate the rights of other men, and with respect to the right to bear arms they attempted no such thing.

In other words, the right to bear arms supersedes the  second amendment and the second amendment was not intended to restrict this right in any way.

So why did they include the phrase “A well regulated militia being necessary to the security of a free state…? George Mason, who co-authored the Second Amendment, stated, during Virginia’s convention to ratify the Constitution (in 1788):

I ask, Sir, what is the militia?  It is the whole people.  To disarm the people is the best and most effectual way to enslave them.

The only thing that might be more important than what the authors’ intended meaning was would be what those that ratified the Constitution believed the meaning to be.  After all, their ratification officially authorized the Constitution as the Supreme Law of the Land.  It is only logical that their ratification can only authorize what they believed the meaning to be.

In the same year as Mason’s statement, Richard Henry Lee wrote a letter stating, “A militia, when properly formed, are in fact the people themselves…”

A few more quotes should help to confirm:

“The people are not to be disarmed of their weapons.  They are left in full possession of them.” —Zachariah Johnson

“…the people are confirmed by the next article in their right to keep and bear their private arms.” —Philadelphia Federal Gazette, June 18, 1789, Pg 2 Col. 2

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms…” —Samuel Adams

“Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.” —James Madison, Federalist Papers #46

“The ultimate authority … resides in the people alone…” —James Madison, Federalist Papers #46

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States” —Noah Webster in An Examination into the Leading Principles of the Federal Constitution, 1787, a pamphlet aimed at swaying Pennsylvania toward ratification

“…if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?” —Delegate Sedgwick, during the Massachusetts Convention, rhetorically asking if an oppressive standing army could prevail

“…but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights…” —Alexander Hamilton speaking of standing armies in Federalist Papers #29

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.” —James Madison, Federalist Papers #46

We have many more first-hand records from that time period that make clear that the right to bear arms applies specifically to private citizens.

It should also be pointed out that the term “the people” is used throughout the Constitution and the Bill of Rights and in every other instance there is certainty as to the meaning of the term.  The states are referred to as “the states” the federal government is referred to as “these united states” and the private citizens are referred to as “the people.”

The current public debate about federal restrictions on firearms is really completely moot.  It is not a matter to be left to the whims of the majority.  We have the right to bear arms.  The federal government has no authority to infringe on that right and the opinion of the majority of voters cannot change that.  The question is not to be settled by the public pollsters or the ballot box.  The question has been settled.

The discussion on banning “assault weapons” is just as irrelevant.  Not only is the entire argument that banning these weapons will reduce violent crime completely bogus (as explained here), but the federal government has no legitimate authority to restrict private citizens with regard to their firearms.  The Constitution makes no exceptions.  Imagine if the same discussion were held with respect to the first amendment.  It would go something like this, “Well yes, we recognize the right of each individual to speak, but we can’t just have them saying anything they want.  We’ll let them speak, but only if they say what we want them to.”

We agree with the sentiment stated here, (along with a more in-depth analysis of the actual syntax of the Second Amendment):

Perhaps the deterioration of American education is illustrated by the high correlation between the number of years a person has attended school and his inability to understand the words “the right of the people to keep and bear arms shall not be infringed.” It is more likely, though, that those who interpret the Second Amendment to preclude an individual right to own guns are driven by their political agenda. Whichever the case, they do themselves no credit when they tell us that a simple, elegant sentence means the opposite of what it clearly says.

Individuals should assert their rights and should not bow to an oppressive government. The states should stand between their citizens and the federal government and halt any attempt by the federal government to interfere. Any interference in the right of the individual to possess, use and exchange firearms is an infringement of those natural rights and should be strongly resisted.



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About the Author

Jeremy Lyman is Director of the Center for Private Property. For the past nine years he has held a real estate license in the State of Utah and has served on the board of directors for the Salt Lake Board of Realtors®, the Utah Association of Realtors®, and the National Association of Realtors®. He is currently the CEO for Blue Mountain Hospital, a Critical Access Hospital located in Blanding, Utah.


2 comments
blkwdw86
blkwdw86

The Supreme Court has been ruling incorrectly on the Second Amendment for generations. The Second Amendment is an AMENDMENT, a change. The instructions in an amendment invalidate any portion of the body of the Constitution to which it may be applied. The Constitution allows infringements upon our freedoms by granting Congress specific powers, such as the power to regulate interstate commerce, levy taxes, etc. However, the change of that body by amending the Constitution to say the right of the people to keep and bear arms shall not be infringed completely negates any power Congress has to infringe upon that right. The Second Amendment makes no provision for the "reasonable regulation" authorized in the body of the Constitution. It offers no exception for "compelling government interest" that the Constitution applies. The Second Amendment OVERRIDES that authority, and specifically denies Congress the power to limit or abrogate the right to keep and bear arms. Just as the instructions in the Fourteenth Amendment overrides the three-fifths of a person clause, "shall not be infringed" overrides every clause that can be used to infringe, which is to say, all of them. ALL gun laws are illegal, as Congress has no given authority to write any.

Jeremy Lyman
Jeremy Lyman

 @blkwdw86 Interesting take.  I don't think any of those other portions of the Constitution (power to regulate interstate commerce, levy taxes, etc..) were intended to give Congress the power to restrict the possession, use and exchange of firearms by private citizens.  I recognize that Congress has usurped these powers and has twisted the intended meaning of these parts of the Constitution, and has been aided by the Supreme Court in its efforts to "infringe" on the right to bear arms.My point.  Even without the second amendment there was no duly authorized power to infringe on the right to bear arms.  But your point is well taken.  To the extent that those other terms have been incorrectly interpreted to give Congress the power to infringe, then you are correct in pointing out that the second amendment would negate that power. 

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