In the wake of another senseless shooting yesterday we can expect progressive attacks on our Second Amendment freedom to become even more shrill and frenetic. That is why now is a good time to go back to basics. In this essay I will explain the history and theoretical underpinnings of the Second Amendment and discuss why it continues to be vitally important in both of its functions – ensuring the right of law abiding citizens to defend against both private violence and public violence.
The Theoretical Underpinnings of the Right to Keep and Bear Arms
The United States Supreme Court has held the right to keep and bear arms [“RKBA”] is “among those fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago.1 No one should be surprised by this holding because the RKBA is deeply rooted in our history, not just as Americans but as heirs to the English common law tradition.
The first thing and most basic thing one needs to understand about the RKBA is that the right is codified in, not granted by, the Constitution. The Supreme Court put it this way nearly 150 years ago: “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”2 In 1689, William and Mary enacted a statute3 in the wake of the Glorious Revolution that is generally considered to be the predecessor of the right that was codified in the Second Amendment over 100 years later.4 William Blackstone’s famous commentaries on the common law greatly influenced the founding generation. Blackstone summed up all human rights within three primary rights – the right of personal security, the right of personal liberty, and right of private property.5 In addition to these three primary rights, he listed five auxiliary rights that serve as “barriers to protect and maintain inviolate the three great and primary rights.” The RKBA is one of these auxiliary rights. According to Blackstone, the RKBA has two independent aspects: (1) “the natural right of resistance and self-preservation;” and (2) “the right of having and using arms for self-preservation and defence.” Thus, by the time of the American founding, the right was understood to protect against both public and private violence.
The first aspect of the right – the right to resist a tyrannical government – was the primary impetus behind the Second Amendment. After all, the Revolutionary War was ignited at Lexington and Concord when the colonists resisted a governmental attempt to seize their arms. The militia clauses of the original 1789 Constitution giving Congress the power to organize, discipline and call forth the militias were highly controversial, because the anti-federalists feared that these powers could lead to the derogation of the RKBA by the federal government. The Second Amendment was included in the Bill of Rights to address these objections.
In the years following the Revolution and the Constitutional Convention, the “check on government power” aspect of the right continued to receive prominence of place. St. George Tucker was an influential constitutional scholar in the founding period, and he described the right as “the true palladium of liberty.”6 Supreme Court Justice Joseph Story, echoing Tucker, wrote in his commentaries: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”7
By the 1850’s, the fear that the federal government would disarm the universal militia that had prompted the founders to include the Second Amendment in the Bill of Rights had largely faded as a popular concern.8 And the second aspect of the right – the right to personal self-defense – had become more prominent in the public’s mind. Nevertheless, both grounds for the right – what I have called the “twin peaks of the Second Amendment” – continued to provide the theoretical foundation of the right. In the next two sections I will discuss why both of these peaks continue to be vitally important for ordered liberty in these troubled times.
The Right to Defense Against Private Violence
A few years, ago my wife and I adopted three precious, beautiful children, ages 3, 5 and 7. Sadly, not long after the kids came to live with us, we received what we believed to be credible information that the biological father was telling people he was making plans to invade our home, kill us, and kidnap the children. Naturally, when we heard this, we immediately contacted the police and an officer came to our house to meet with us. I doubt I will ever forget that conversation. The officer politely listened to our concerns and commiserated with us as we told our story. And then he said “Well, if he attacks you give us a call and we will get here as soon as we can.” Have you ever heard the old saw, “when you need the cops in seconds, they are only minutes away”? My wife and I sat there across our kitchen table from the officer and came to grips with the reality underlying that old saw. Don’t get me wrong. I am not criticizing the officer who sat with us, and in retrospect, I should not have been surprised. Criminals have this advantage over the police: They pick the time and place of their crimes. What was he going to do, promise us that he would have a unit parked in our driveway 24/7 from then on? Of course not. The cops cannot be everywhere, and it follows that their role is almost always reactive and not preventative.
My wife and I took our safety into our own hands. We upgraded our alarm system and installed a security door. And I made an appointment with a dear friend, an ex-Navy SEAL, who gave me a course in combat shotgun. And from that time on I slept with that shotgun nearby. Many nights I laid in bed wondering if this was the night when we would hear a crashing door or a breaking window, the dogs would bark, the alarms would scream, and I would face the test of whether I would be able to put another man down. My SEAL friend told me to have a specific plan and to visualize implementing that plan over and over. My wife and I physically practiced our roles in the plan, and countless times I laid there staring at the ceiling as I pictured hearing the crash, grabbing my weapon, racking the slide, and running to meet our attacker in what would surely be a deadly encounter.
This season of our life came to an end a few nights ago when this man died in a violent encounter with the police. The next day I marked the occasion by putting my shotgun in the gun safe for the first time in a very long while.
Here is where the RKBA comes in. This man was a career criminal who had been to prison several times. It was illegal for him to possess a firearm. Yet he had one in his hand when he died. This may come as a shock to you, but criminals don’t follow the law. That’s right. Criminals are infamous for ignoring pesky statutes they find inconvenient, such as the statute that prohibits criminals from possessing guns. Another old saw: “If you outlaw guns, only outlaws will have guns.” Trite? Yes. True? Also yes.
There are over 300 million firearms in this country – we have more guns than people. Any attempt to confiscate all of those guns would be not only unconstitutional, but also wildly futile. That is why one basic, indisputable fact should always underlie every discussion about the right to private defense: Bad men will always find a way to get a gun. Two more facts follow from this one: (1) The police will candidly admit that they usually cannot prevent bad men from attacking good people. (2) Therefore, law abiding citizens must be free to defend themselves with equal if not superior firepower to that employed against them.
My wife and I have lived as if under the Sword of Damocles. She was especially vulnerable, and can tell you how it feels to have a stab of fear in your heart every time an unfamiliar car passes by. We hoped the day would never come and thankfully it did not. But we had to prepare to defend ourselves and our precious children. Her .38 special and my 12-gauge pump action were crucial to that preparation. Gun control fanatics imagine a utopia where such preparation is never necessary. They have deluded themselves and would delude the rest of us too. We must live, not ignore, harsh realities, including the harsh reality that bad men will always find a way to arm themselves. We must resist the progressives’ efforts to disarm us and render us defenseless. Never forget that the Greek roots of “utopia” literally mean “no place.”
The Right to Defense Against Public Violence
Two of the stupidest comments I hear from gun control fanatics are “You don’t need an AR-15 to hunt!” and “the Second Amendment does not protect weapons of war!” God help us. The sheer breadth and depth of the historical ignorance that underlies these statements beggars belief.
The Second Amendment states: “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.”
What in God’s name do these fanatics think a militia does? That’s right. It fights wars. As we saw above, the RKBA ensures the right of the people to defend against both private violence and public violence. Only an idiot believes the Second Amendment was a sop the Founders extended to duck hunters to get them to vote to ratify the Constitution.
But surely, we are far past the time when we need to worry about public violence, aren’t we? No, we are not.
A few years ago I had a gun control debate with a friend (we will call him “Tony”) who was a citizen of Hong Kong. There was a mass shooting here, and Tony took to Facebook to bemoan gun violence in the United States and compare us unfavorably to peaceful Hong Kong. In my response I acknowledged that mass shootings are indeed a terrible thing and a few thousand people had indeed died in such incidents in the last 50 years. But then I tried to put that statistic into perspective, and I asked my friend “What did Mao call a few thousand deaths?” Answer: “Tuesday afternoon.” Mao famously said that “power grows out of the barrel of a gun,” and in his China, the government had a monopoly on guns. He used that monopoly to perpetrate 65 million murders. That’s right, I said, within living memory your government used its gun monopoly to accomplish the ruthless murder of tens of millions. Maybe governments should not have a monopoly on guns.
Tony was unimpressed with my arguments and eventually unfriended me. Xi’s government stands in direct linear descent from Mao’s government, and in recent months we have watched in horror as China brutally stomped out the last vestiges of freedom the British common law system had bequeathed to Hong Kong. As I watch those reports, I sometimes wondered if Tony ever thought back on our exchange. Has he reconsidered whether it would have been a good thing for the freedom loving citizens of Hong Kong to have the means to resist Xi’s brutality by force of arms?
But that can never happen in the United States Barry. Why do you say that? Are American politicians so much purer of heart than Chinese politicians? Does their lust for power not burn as hotly as their Chinese counterparts? Do you really think that a wild-eyed progressive fanatic like Alexandria Ocasio-Cortez would not impose her utopian visions on the American people by force of arms if she thought she had half a chance?
I will grant you this. Maoist style authoritarianism is unlikely to occur in the United States. But this is not because our politicians are better than theirs. It is because our politicians have a healthy fear of a well-armed citizenry and know there are limits beyond which they dare not push us. I hope there never comes a day when those limits are tested. But if they are, I am glad the Second Amendment ensures the US government – unlike the Chinese government – will not have a monopoly on power.
Freedom is Costly
None of what I have written means I take the deaths caused in mass shootings lightly. Every death is a tragedy. And it is certainly the case that the right to keep and bear arms comes at a cost – the cost we incur when that right is abused. But we do not jettison our fundamental rights even when it is absolutely certain that public safety would be increased if we did. This principle is true not only of RKBA; it is equally true of many of our other freedoms. As the Supreme Court noted in McDonald:
The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. The exclusionary rule generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large. [There are] serious consequences of dismissal for a speedy trial violation, which means a defendant who may be guilty of a serious crime will go free. In some unknown number of cases [the Miranda rule] will return a killer, a rapist or other criminal to the streets to repeat his crime.
We could do away with the right against self-incrimination and let cops beat confessions out of suspects. There is not the slightest doubt that if we did, countless lives would be saved by keeping criminals off the street. We do not give up this and other freedoms even though they come at a high cost. Why? Because in the United States we have chosen a dangerous freedom over a peaceful slavery.
1561 U.S. 742, 778 (2010).
2United States v. Cruikshank, 92 U.S. 542, 553 (1876).
31 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441.
4District of Columbia v. Heller, 554 U.S. 570, 593 (2008).
51 Blackstone 141 (1765).
61 Blackstone’s Commentaries, Editor’s App. 300 (S. Tucker ed. 1803).
73 J. Story, Commentaries on the Constitution of the United States § 1890, 746 (1833).
8McDonald, 561 U.S. at 770.