by John H. Trentes jtrentes@cybergate.net
Now that my colleague Mr. Wallace has given his "thumbs down" to the concept of an individual right to keep and bear arms, let's start off with the inevitable retort. There is, in any genuinely free nation, by necessity, an individual right to keep and bear arms, no matter *how* much its opponents wish it were otherwise.
I was tempted to simply trot out my dog-eared copies of Kleck, Halbrook, Cramer, Hardy and others and begin to quote generously from all of the fine and well reasoned arguments these commentators have made. Mr. Wallace, however, isn't involved in this colloquy to debate Gary Kleck or Stephen Halbrook, he's here to debate me. Furthermore, their views have already been published and there would be no useful purpose served by my repeating them here. I am including a brief bibliography of some of the more notable works on this subject at the end of this message.
In beginning this project, I asked myself what new perspective I had to offer on this subject. Mr. Wallace and I are both lawyers, so I guess the first impulse was to start and finish with a legal analysis. That's precisely why I will not. Mr. Wallace gives me the impression that he is a legal theorist, and certainly a philosophical mind. I approach the Second Amendment from the perspective of a political activist and a lobbyist. Therefore if my statements seem to be about what "ought" to be, it's because I frequently have a personal hand in turning what "ought" to be into what "is."
I am aware of the cases Mr. Wallace cites to support his argument. Most if not all of the cases that are ever cited by proponents of a Mr. Wallace's view rely on United States v. Miller for the proposition that the Second Amendment guarantees a right to the States as against the Federal Government, and not to individuals. It seems to me, if this were true, that the Supreme Court could have much more easily dispensed with the case by simply ruling that Mr. Miller was not a State. They didn't do that, however, and that is an indication that the case doesn't stand for what those opposed to gun ownership say it does. Judges, like electricity tend to follow the path of least resistance.
A lot of interesting facts tend to get overlooked when this case is discussed. The trial court found that the National Firearms Act of 1934 was unconstitutional because it violated the Second Amendment. The Supreme Court did not hold that the reasoning of the trial court was wrong, and likewise, it didn't rule that short-barreled shotguns were inappropriate for private ownership. The Court reversed the decision of the trial court on the grounds that a factual determination was necessary of whether short-barreled shotguns had utility for military use. The implication was that if the military used them, then it was acceptable for the defendant to have one. (I'm not even going to mention that Mr. Miller's attorney didn't bother to show up for oral arguments, that would be rude.)
Regarding the other cases, for the most part, they rely on the same misconstruction of the Miller case that Mr. Wallace proposes. I believe it's enough to say that where the foundation of a house is faulty, then the rest of the house crumbles. That's as much as I'm going to comment on the cases except to say that all of the assertions Mr. Wallace makes based upon these cases have been thoroughly and convincingly refuted by the analyses you'll find listed below in the bibliography. Instead of repeating them here, I'd rather use the space afforded to me here to talk about some much more fundamental issues.
All of the debates I've ever read on the Internet about the Second Amendment to the United States Constitution make only one half of the necessary analysis. They argue about what the status of the law is. In order to fully understand the concept embodied in the Second Amendment and why it is necessary, we have to examine it also in the context of another thing. These debates sometimes touch on this other thing and may refer to it by name, but by and large it is not the usual starting point or primary focus of the argument.
The law is not a product of the divine. It is nothing more than a construct of human understanding and it represents a constant struggle between competing viewpoints as to which one will end up governing our lives. It is not absolute. It is not static. Sometimes it goes astray, but then that leads to the question of how do we know when and how it has?
Mr. Wallace's arguments, analyses, questions and observations have so far concentrated on the alleged status of the law and, as he puts it, "what is". He characterizes my arguments as being wholly about what "ought" to be. In saying this, Mr. Wallace has hinted at the beginnings of a real analysis of any fundamental human right, but he has done so without actually removing his shoes and wading into it. What "is" is the question asked by the functionaries of the law. What "ought" to be is the question asked by functionaries of another thing. Politics.
In order to put it more directly, today's "what is" of the legal process used to be yesterday's "ought" of the political process. Therefore if you haven't educated yourself as to the "ought", you'll never properly understand the meaning or implications of the "is". Mr. Wallace's analysis focuses first on the legal process and gives a passing nod to the political. That's exactly backwards. If we don't first look at the political underpinnings of the Second Amendment, the legal analysis of it becomes nothing more than a very dangerous game of Trivial Pursuit.
Permit me to paraphrase Mr. Wallace's central argument: even if the original intent of the framers of our Constitution had been to grant an individual right to bear arms, that's irrelevant today because the courts have ruled it out of existence.
I object to this line of reasoning because I consider any act of government to abridge an inalienable right to be illegitimate. In other words, what is a basic human right cannot be legitimately taken away by a government.
I propose that all inalienable rights can be summed up into two categories:
1) You have the right to live.
2) You have the right to self-determination. (Or call it Freedom, if you like. I do.)
The right to arm yourself is intimately related to both of these. The right to live is meaningless if you have no means to defend your life. Your right to self-determination is an empty shell if you can be forced to surrender it to any other entity.
Mr. Wallace and I have embarked on two separate and distinct activities. He is arguing law; I am arguing politics. The practice of law and the practice of politics are siblings that possess many of the same trappings: the same suits and ties, briefcases, similar terminology, similar rules of decorum and so on. They are, however, two utterly different things. Law and politics are not usually concurrent processes but consecutive, and the political process usually gets the last word, sometimes by force or threats of force. What I have seen is that conflicts over fundamental rights tend to begin within the legal system. They tend to be resolved within the political system. The final arbiter in the practice of law is the gavel of a judge; in politics it is the hammer of a gun.
Therein lies the real issue in the debate over firearms. The ability, in the final instance, to exert force over those who oppose you is the fundamental source of political power. This is nothing shocking or new, it's the oldest political axiom there is. Therefore if this debate appears on its face to be about whether the right to keep and bear arms is a state right or an individual right, its import is far greater than that. What we're really debating about is who has the legitimate authority to rule this country, its people or their government?
Examined in this light, the absurdity of depending upon any governmental entity for interpretation of an individual citizen right to keep and bear arms rings out loud and clear. What government ever interprets itself to be less powerful? What government ever voluntarily legislates away its prerogative to rule? For this reason, if the right to keep and bear arms is not indelibly embroidered into the fabric of government as one which is inalienable; beyond the reach of that government's grasp, then it will inevitably be denied. At that point, what used to be a constitutional republic no longer rules with the consent of the governed, it rules in spite of the consent of the governed.
And this takes me back to my original premise: There is, in any genuinely free nation, by necessity, an individual right to keep and bear arms, no matter *how* much its opponents wish it were otherwise. It is necessary because it is definitional; if the ownership of arms is reserved only to the government, then all power over life and self-determination is reserved only to the government. Even if such a government treats its subjects well, it will never rise past the status of benevolent despotism.
Am I even hinting at armed rebellion here?
Nope.
I'm saying that the debate over an individual right to keep and bear arms isn't about that indoor sport we laughingly refer to as "litigation", it is about the ultimate political question.
Who governs whom?
Halbrook, Stephen P., THAT EVERY MAN BE ARMED, THE EVOLUTION OF A CONSTITUTIONAL RIGHT (University of New Mexico Press, 1984) ISBN: 0-8263-0868-6
Hardy, David T., ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT (Blacksmith Publishers Corporation, 1986) ISBN: 0-941540-13-8
Kleck, Gary, POINT BLANK, GUNS AND VIOLENCE IN AMERICA (Aldine de Gruyter, 1991) ISBN: 0-202-30419-1
Levinson, Sanford, THE EMBARRASSING SECOND AMENDMENT (Yale Law Journal, December, 1989) 99:637-659