2nd Amendment and the Freedom Recipe

Posted by on Apr 8, 2013 in Articles | 0 comments

2nd Amendment and the Freedom Recipe

After a century of “progressive” and “New Deal” political thought and policies, the Constitution has lost much of its authority in American government, law, and public life. As a nation, we still seem to adhere to select parts of the Constitution — such as the requirement to hold elections for Congressional offices and the Presidency — though it’s not easy to discern a principled reason why parts of the Constitution should be obeyed when “We the People” and our elected representatives seem quite willing to ignore, violate, or re-define huge swaths of it.


The Second Amendment Is Irrelevant

But for those interested in the Constitution and how it bears on the current debate over guns, here are my two cents:

The Second Amendment is irrelevant, especially with regard to Congressional regulation of guns.

The ONLY constitutional question that ought to be asked is: Does the Constitution anywhere grant to Congress the power to pass legislation regulating what kinds of weapons citizens may possess? If the answer is no, then that’s the end of the conversation. It’s not the business of Congress, or the federal government in general, regardless of what the Second Amendment does or does not mean.

The focus of the discussion should not be about what the word “militia” meant or what kinds of guns were used at the time the Second Amendment was ratified. The discussion should not be about magazines or clips or bullets, or how some members of Congress don’t know the difference.

Flying Pink Elephants

The focus should be on what few powers “We the People” have granted to Congress through our Constitution — most of which are found in Article I, Section 8 — and the many powers we did not grant to Congress, including the power to regulate our guns. Literally, the federal government has no more constitutional authority to regulate guns than it does to regulate flying pink elephants, though I wouldn’t be surprised if there exists today an FPE (Federal Department of Flying Pink Elephants).

The gun lobbyists, in general, make the mistake of treating the 2nd Amendment as if it stands alone. It does not. It is part of the larger Bill of Rights. The story of how we got the Bill of Rights explains much. The three key players were Hamilton, Madison, and Jefferson.

A Bill of Rights Is Dangerous

Alexander Hamilton argued in The Federalist Papers no. 84 that a bill of rights is both unnecessary and dangerous. It’s unnecessary because bills of rights made sense only for Europeans who lived under the Christian theory of divine right of kings, according to which a king possessed virtually unlimited sovereign power as he was allegedly authorized directly by God to rule over the people without their consent. If a king (i.e. government) has no limits on his power, then, yes, it makes sense for his “subjects” to list a few rights and demand (preferably with a sword to his throat) that the king not violate them.

But in America, Hamilton emphasized, we live under no king, no government of unlimited sovereign power bestowed by gods or anyone other than the people. Our government has only the very few, limited powers that “We the People” gave to government through our Constitution. Our individual freedom is best protected, therefore, by enforcing those limits on government power, not listing rights.

Further, Hamilton argued that a bill of rights is positively dangerous because no list of rights will be comprehensive or exhaustive. If we adopt a bill of rights, Hamilton worried, then government will be inclined to limit our actions to those things listed in the bill of rights only. If a right is not listed in a bill of rights, the government might assume, then we as individuals do not possess that right. A bill of rights, Hamilton warned, could actually be used to limit our rights and freedom. Witness our debates today over whether the Second Amendment does or does not grant to individuals the right to own certain guns, to see just how prescient Hamilton was.

Madison Understands the Limits of Power

Thomas Jefferson was on the other side of this debate, even though he was in France at the time of the Constitutional Convention. Jefferson was thinking like a European and insisted on a bill of rights, arguments he made in correspondence with his friend James Madison.

Madison was caught in the middle. As Hamilton’s main co-author of The Federalist Papers, Madison understood well and largely agreed with Hamilton’s warnings against a bill of rights. But when Madison was elected to the First Congress as a representative from Virginia, he saw that anti-federalist critics of the Constitution demanded a bill of rights, and that any bill of rights they produced would have fundamentally altered the structure of the Constitution (allowing established churches and other bad things).

Thus Madison decided to author a bill of rights that would serve two purposes: First, it would give the anti-federalists the bill of rights they were clamoring for and help win their support for the newly-adopted Constitution. Second, it would be utterly redundant and neither add to nor detract anything from the Constitution.

Congress Shall Make No Law …

Consider the First Amendment: It says Congress shall make no law respecting an establishment of religion. But did the Constitution anywhere grant to Congress the power to make laws respecting an establishment of religion? No! Even if the First Amendment was repealed today, that still does not grant to Congress any power to make laws respecting an establishment of religion.

The entire rest of the Bill of Rights, for the most part, follows the same course: Stating powers that government DOES NOT HAVE because WE THE PEOPLE NEVER GRANTED THOSE POWERS TO GOVERNMENT.

It is in this framework that the Second Amendment ought to be understood. It does not grant rights to the people. Rather, the Second Amendment reminds government of things GOVERNMENT CANNOT RIGHTFULLY DO, such as interfere with the freedom of individuals to arm and protect themselves from all potential threats to their individual rights — criminals, a tyrannical government, invading armies, whatever. And even if the Second Amendment were to be repealed, that in itself would give no power to Congress to regulate guns owned by citizens.

“We the People” Have Individual Natural Rights

Madison’s strategy is best summed up in the Ninth and Tenth Amendments, which make clear that “We the People” have individual natural rights IN ADDITION TO the few mentioned in the Bill of Rights, and that the national government has ONLY THE POWERS granted to it by the Constitution.

That is the real meaning of the Second Amendment. It is best described in Robert Goldwyn’s beautiful little book, From Parchment to Power: How James Madison Used the Bill of Rights To Save the Constitution. By thinking through the political logic that informed the Second Amendment and its place in the Bill of Rights, we can set ourselves on a course to becoming a constitutional republic once again, while securing the individual freedom we stand to lose today.

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