Thursday, January 7, 2016

A Response to the "Anti-Government" View of the Second Amendment

I appeared on "Essential Pittsburgh" yesterday, a call-in show on NPR radio, to talk about the constitutionality of President Obama's executive actions intended to improve and enhance background checks on persons purchasing guns. Following the program I received an e-mail from a listener (first name of "Jim") who challenged my position on the Second Amendment in several respects. He wondered why I omitted the phrase "of the people" when reciting the Second Amendment from memory. (Really, it's just my age, Jim!) He suggested that I favored the "collective right" over the "individual right" interpretation of the Second Amendment. (I don't - but we still have to determine precisely what the individual right is.) He wrote that I was wrong in stating that the Pennsylvania Constitution of 1776 included the right to hunt. (I have since checked and it does protect the right to hunt, in Section 43.) Most importantly, he expressed support for the theory that the Second Amendment was intended to prevent "tyranny." I agree with Jim on this last and most important point. But he and I may disagree about precisely how the Second Amendment was intended to operate as a check on "tyranny." My entire response to Jim follows.

Hi Jim,
                My omission of the phrase “of the people” was not intentional. It was observant of you to notice, but it does not have anything to do with my beliefs about the Second Amendment. As you know, Jim, all constitutional rights are individual rights, not group rights – adding “of the people” is of no significance. You are inferring something without good reason.
I agree with the Supreme Court’s decisions in Heller and McDonald that every person has a constitutional right to self-defense, and in light of the long tradition of gun ownership in America I have to concede that it’s reasonable for the Court to rule that people have a constitutional right to own a handgun in their homes for the purpose of self-defense. I don’t agree that this is a Second Amendment right – I would have made it an unenumerated right implied by the word “liberty” in the 5th and 14th Amendments – but the Supreme Court has the last word on these matters, not me!
As you correctly note, the Supreme Court ruled that the Second Amendment confers an individual right, not a collective right. But you are wrong to infer that I agree with the “collective right” theory. I do agree with both you and the Supreme Court that the Second Amendment was intended as an individual right. However, I think it was intended to be a right that is analogous to the right to serve on a jury –  both a right and a duty! It is the right and the duty to serve in the citizen militia. Time has passed the concept of the “citizen militia” by, however, and as I mentioned on the show that left the Supreme Court with a dilemma – what do you do with such an important amendment that seems to have no application in the modern world? The Supreme Court decided to turn it into one aspect of the right of self-defense that, while a natural right, has nothing to do with the Second Amendment as originally written.
I would have to check the original Pennsylvania Constitution again. I could have sworn that it mentioned the use of arms for both hunting and self-defense as individual rights. But you have checked it more recently, and I defer to you.
I agree with your final point, that the Second Amendment was intended to protect against tyranny, but you and I may have some sharp disagreements about how it was intended to accomplish that. The historical record is clear that the founders did not want to have a standing army during peacetime. They wanted a citizen army that would be supplemented by a professional army in time of war. Sadly, the War of 1812 made it clear that wasn’t going to work, and the militia gradually withered away after that. I don’t at all agree that the founders wanted the militia to fight the government. That’s very much against the historical record. Jim, what do you think that Alexander Hamilton, George Washington, and Benjamin Franklin all thought about Shay’s Rebellion? Do you think that they approved of it? Look at what Hamilton and Washington did a few years later in suppressing the Whiskey Rebellion. And take a look at what they wrote in the Constitution about the expected role of the militia. Its purpose was “to execute the laws of the Union, suppress insurrections, and repel invasions.” That’s pretty much the opposite of what you are suggesting. Furthermore, the Constitution reserves to the government itself the power to “call forth” the militia; to arm, organize, and discipline it; to govern it; and to appoint its officers. Furthermore the Second Amendment describes the militia as “well-regulated.” No, I think that both the text of the Constitution and its history make it crystal clear that the framers of the Constitution did not want to encourage private members of society to take up arms against the government. They wanted a citizen army that would be under the control of the government. They weren’t authorizing rebellion.
Two generations later Lincoln addressed that point. The right of revolution, he said, is not and cannot possibly be a legal or constitutional right. Rebellion is by its very nature illegal. If rebellion is to be justified it must be on moral, not legal grounds. The Declaration sought to justify the Revolution on moral grounds. In contrast, the Confederacy was launched on deeply immoral grounds. Terrorists and people like the Bundy’s by definition are violating the law. The justification for their actions, if any, depends not on the Constitution but on the strength of their moral position.
Thank you for your interest and response. That is one thing that unites us as Americans. We care about freedom and self-government. I appreciate the opportunity to debate these issues with you.

                Will Huhn

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