Saturday, December 1, 2012

To Keep and Bear Arms

“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.”

And so the framers of the Constitution enshrined this right in our Second Amendment.  

One of the arguments against the right of the individuals to carry arms is the initial phrase of this amendment, “A well-regulated militia...”.  Is it possible that the right to bear arms was to be  relegated to some militia or police force and not to individuals?  Or was the right given to individuals, who, on their own initiative, formed such a militia?  Here we have the classic arguments of the collectivists and statists vs. the conservatives. Is the right to self defense a fundamental responsibility of individuals, or a collective right of their governments?  

The Federalist papers argued both sides of the issue.  On the one hand, no reasonable person would casually entrust his security to another person, nor would he lean on his neighbor for security, any more than he would freeload off his neighbor for support.  In the first instance, he would be shirking his duty to those under his care.  In the second, he would be a fool.  The founders also recognized that some individuals would be rogues, not protectors, and these criminals would take what they wanted by force of arms.  Therefore, every capable person (plural = people) was individually responsible for his own protection and each ought to bear arms if at all possible.  

Please note that the right to bear arms is directly related to the notion of self-defense.  It has nothing to do with “sporting”, hunting or other recreational or food-gathering activities.  The classification of guns into “sporting” and “military’ categories is just political spin, a fiction, not a law.

Of course, there were then, as there are now, criminal gangs, warlike natives, and inimical foreign governments.  The founders of this country recognized that any realistic security against groups of bad guys required that the citizens form their own defensive groups, or militias.  There were no Lords who had armies of serfs, knights and archers to protect the land.  Militiamen were drawn from among the common individuals that owned arms and gave up their harvest time or family duties to fight.  They met in ale houses and public meeting rooms and elected leaders, sought subscriptions for support, and trained for their own defense.   Only later were the duties of a militia relegated to more permanent organizations staffed with people who were not required to harvest crops or tend to other business.  We call those “police” and “armies”.   Benjamin Franklin wrote in his memoirs about raising an army.  The French were invading from Canada.  Franklin called on his colleagues for voluntary subscriptions.  He served as leader more than once, even though he had no relevant training.  He also campaigned for a regular standing army, having lost a fortune  provisioning a volunteer army from his own pocket.

Therefore, we see the right to keep and bear arms was BOTH individual AND collective.  There was never any divisive interpretation along those lines until recently.

What about the drunkard, the occasional mental defective, or the deliberately malevolent?  Were they “allowed” to bear arms?  Didn’t they do great harm?  

In the absence of modern psychological profiling and pills, most of these misfits were simply shunned, ignored and excluded.  Every town had a few.  Yes, there were duels, jealousies, greedy manipulations and axe murderers like Lizzy Borden.  The general attitude was that the crime was punished, not the weapon.  No one thought to put the musket or the axe on trial.  Intent was, and is, essential to the deed, and no judge ascribed intent to inanimate objects.  Arson kills people, but no one seriously wants to eliminate fire.  We punish the arsonist.

If they could have identified those persons prone to commit violence by some sort of test, as we propose today, what would the founders have thought of that idea?  By reference to the Federalist arguments over a “nation of laws, not men” we can see their likely argument:

Who could be trusted to devise and administer such a test?  Would some angel descend from Heaven with a perfect means of judgement in hand?  And if he did, why would we not administer that same test to those in government, who could do irreparable harm to so many?  Perhaps we could then give up the idea of imperfect people ruling themselves and go back to the divine right of a perfect king?  After the revolution, a majority of governors actually elected George Washington as King.  He refused.  Washington was horrified to be considered any kind of King or royalty or to be in a position to create a dynasty. He cited the Rule of Law as ascendant over the rule of mere men.  There is no such perfect test of propriety, and the inalienable rights of individuals remain ascendant over the rule of imperfect beings.

The founders planned for a nation to be ruled by imperfect individuals. They would equally reject the notion of prior restraint based on some kind of test.  Any such test would be more dangerous than the alternative.

If there was some such test for a prior restraint to be applied to violent individuals, why restrict them from just firearms?  Why not knives and axes?  In fact, if they are such a danger to society, why not just lock them away from the rest of us?  Why not create a Bedlam of the dangerous, a system of high-security prisons to make all the rest of us perfectly safe?  How are we, then, to defend against a malevolent individual who lies in disguise, never revealing his true self until just the right time to commit major mayhem?  You see, prior restraint doesn’t work.  We have to go by observable acts or we threaten the entire idea of justice.   

Malevolent individuals commit many small, indicative acts that could get them recognized and punished.  That is how we ought to find and judge them.  

Given a law for prior restraint, an ambitious, corrupt governor might chose to label his opponents as dangerous and have them all locked away...

What is enough firepower for self defense? Does it require guns?  Handguns?  Automatic weapons?  Is there anything in the literature of the founders that says guns must have a limited capacity or firepower, or they are not suitable for private ownership?  No, there isn’t.  

When your self defense is adequate, you have enough weapons.  When it is insufficient against other individuals, or your militia is insufficiently armed for its purpose, you need better weapons.  Short of the weapons of mass destruction, or where indiscriminate use necessarily entails “collateral damage” there ought to be no prohibited weapons  for individuals.  Somewhere between machine guns and missiles there is a line imposed by cost, training and plain caution, beyond which they become part of a military arsenal.  The framers were certainly aware of that and set checks and balances regarding the funding of an army and the declaration of war, so that the military is used for the defense of the people and not for their demise.

What about those countries that do not allow individuals to own firearms?  Aren’t they secure with their police and laws?  No, they aren’t.  They still lock their doors at night, fence their pastures and brand their cattle.  They carry sticks, slings, and machetes.  These are sufficient for self defense against all but firearms and government thugs.  Against these they are deliberately kept defenseless and they do suffer.  They are subjects in a quasi-feudal society at the mercy of their rulers, not citizens.

In every case where a people have been disarmed by regulation or limitation, crime has increased over time.  It is certainly safer to commit crimes against unarmed people.  Just as certainly, it is easier to control a population that cannot fight back...

...And that is the last and most important issue.  In spite of the checks and balances of the Constitution, the founders understood that tyranny will eventually rise, whether it is by force or by stealth, and that the right of self defense may ultimately be used against inimical governments.  A nation founded on revolution does not soon forget that a revolution requires arms in the hands of the people.  The first act of tyranny will be to infringe that right.

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