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The gun debate illuminates the broader constitutional crisis

Conservative Review

We live in an era when one entire political party believes that what is in the Constitution is not in it and what’s not in the Constitution is really enshrined in the ever-evolving elastic document. What’s worse, the federal judges who align with this party, yet are sworn to uphold the Constitution, believe in the same backwards vision.

Consider the following: The Constitution doesn’t mention a word about gay marriage (or marriage at all), yet liberals believe it does. At the same time, the right to keep and bear arms is enshrined into our Bill of Rights in the most unambiguous language (“… shall not be infringed …”), yet they believe it can and should be infringed upon. Put another way, while states are now precluded from denying a positive privilege to gay couples — a privilege over which they had plenary power since the founding of our country — they have the power to take negative action against someone who peacefully bears arms.

The relevant clause of the Second Amendment assures “the right of the people to keep and bear Arms, shall not be infringed.”

There are three observations that should automatically jump out at any student of the Constitution.

  1. The Second Amendment was not merely expressed in a positive sense — “there shall be a right to keep and bear arms.” Were that the case, one could conceivably make the case for Congress or a state legislature limiting a number of options and conditions for gun rights as long as there were enough remaining lawful opportunities to fulfill those rights. Rather, it was expressed in the strongest negative terms directed at the government — that the right “shall not be infringed.” The notion that states can categorically ban numerous popular firearms and ammo and place substantial burdens on even purchasing and owning any firearm is preempted by the most unequivocal language afforded to any fundamental right at the federal level. Yet, it took 200 years for the Court to “discover” the most foundational of unalienable rights in the Heller and McDonald decisions to overturn full gun bans. [1] Even since those cases, however, the lower courts are upholding anything short of complete categorical bans and the Supreme Court is casually denying review of these precedents. [2]I’m not one of those who believe we should rely on the courts to protect our rights, or that this was even the core objective of creating a judiciary. If, however, courts are going to discover all sorts of new super rights that are alien or antithetical to our founding values, and impose them upon the states, how can they sit idly while states violate the one right that is explicitly walled off with the impervious language of “shall not be infringed”?
  2. The fact that the text of the amendment uses the words keep and bear arms demonstrates incontrovertibly that the authors’ intent was to protect the right to carry on one’s person at all times, not just in one’s home. This language was taken directly from the Virginia recommendation for a bill of rights, proposed by George Wythe, the first American law professorat the ratifying convention in June 1788. In a letter to John Cartwright, Thomas Jefferson was unequivocal that “it is their right and duty to be at all times armed.” He advised Americans that a “gun therefore be the constant companion of your walks.” It is appalling that so many states either prohibit or place a substantial burden on carrying a firearm or that people are restricted from carrying across state lines. It wasn’t until 2012 that a district judge in Maryland agreed to strike down the state’s anti-carry laws, but in Woollard v. Gallagher the 4th Circuit upheld the unconstitutional laws and the Supreme Court obnoxiously denied cert to the petitioners. [3]
  3. The Second Amendment refers to gun rights as “the” right. This language was reserved for all of the fundamental, unalienable rights granted by God — the same language used for the freedom of speech, religion, and assembly. This is why many conservatives don’t like using the term “Second Amendment right” when referring to the right to bear arms. The Second Amendment didn’t’ create the right; it is God given and self-evident. It is for this reason that many of the Federalists, including James Madison, at least initially, were opposed to adding fundamental rights into the Bill of Rights. They feared it would give off the impression that A) these rights were granted by the Constitution and not God and B) these were the onlyrights reserved to the people. [4]The right to self-defense is ranked among the most unalienable rights and is indispensable to protecting the foundational rights of life, liberty, and property. While most conservative originalists believe that not all clauses of the Bill of Rights necessarily applied to the states and that the 14th Amendment did not “incorporate” the states into the Bill of Rights, even a state government cannot harm a God-given right (as I noted last week with regards to religious liberty). Judge Timothy Farrar, who wrote the first and most respected post-14th Amendment constitutional treatise, seamlessly listed the right to bear arms among the unalienable rights that states cannot violate. [5] St. George Tucker, one of the earliest respected commentators on the Constitution, referred to gun rights as “the true palladium of liberty.” [6] The self-evident nature of the complete right to bear arms was such a given that there was virtually no debate on this part of the Bill of Rights when Madison introduced it in the House of Representatives. All of the debate centered on the phrase about the militia and whether Quakers could be drafted into such a force. [7]

Madison [in Federalist no. 46] referred to the right to bear arms as a right that “Americans possess over the people of almost every other nation.” It is why, until recently, we have done a better job preserving fundamental rights than any other nation. Not even a state government can infringe upon this right, yet we now have a president who thinks he can do so unilaterally without Congress at a federal level.

The only question that remains is if we will let him.

[1] District of Columbia v. Heller, 554 U. S. 570 (2008), McDonald v. Chicago, 561 U. S. 742, 780 (2010)

[2] Espanola Jackson, et al. v. City and County of San Francisco, California, Et al, No. 14-704 (9th Cir. June. 8, 2015); 76 U. S. ____ (2015) (cert. denied, Thomas, J., dissenting). Arie S. Friedman, et al. v. City of Highland Park, Illinois, No. 15-133 (7th Cir. Dec. 7, 2015); 577 U. S. ____ (2015) 577 (cert. denied, Thomas, J., dissenting)

[3] Woollard v. Gallagher, 712 F.3d 865, 874 (4th Cir.), cert. denied, 134 S. Ct. 422 (2013)

[4] James Wilson said at the Pennsylvania ratifying convention, “If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”

[5] T Farrar, “Manual of the Constitution of the United States of America” (Boston 1867) p. 145 § 118 [“The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to "life, liberty, and property," to "keep and bear arms," to the "writ of habeas corpus" to "trial by jury," and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or or even by the government itself.”]

[6] Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969. [“This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes.”]

[7] Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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