Tuesday, August 12, 2008

Second Amendment Thoughts

I finally have something to say, if not exactly about D.C. v. Heller, then at least about the constitutional right to bear arms in general.

The history of the development of the Constitution shows that the Founding Fathers were not fools. They did not think that previous governments had all been tyrannical to some extent, but that theirs would be free from this flaw. Indeed, they were aware that even well-intentioned governments run by good people would turn to oppression if not sufficiently checked. Perhaps the means to check government encroachment on individual rights does not exist, but, at the least, the Constitution and the Bill of Rights were meant to guide government away from abuse when it went astray.

The idea that a even government with a philosophically pure foundation could not be trusted to protect its citizens was not shared by, among others, Rousseau. For him, there certainly were illegitimate governments, but once the "general will" of a truly democratic government were formed and its demands implemented, dissent would thereafter be treasonous. I don't mean to suggest that all our Founding Fathers were on the anti-Rousseau side of this, either; I just think that, on the whole, and especially with Jefferson, the view was that even a good government should tolerate dissent against its rule, both because government can never be sure that it is good (and thus that its silencing of dissent is just) and because good government is incompatible with suppression of speech and ideas, even bad ideas and unpleasant speech.

Of course, the founding was not made by ideas and speech alone - it was accomplished with force of arms. Interpretation of the Second Amendment ought to give consideration to this question: was the amendment designed to protect the right of the citizenry to accomplish against the new government what it had against English rule, if the situation called for it, or was the right limited by the presumption that a founding document could not sanction armed uprising against the very rule that it implemented?

The question seems most difficult in the case of the Second Amendment. It's no longer very controversial to say, about the right to free speech, that even someone who says that the Constitution and the United States government are deplorable things that ought never to have been has the right to say that. Even though, were the desire expressed by his words to be made manifest, he would lose the constitutional protection even to say them, this apparent contradiction is the result of our distrusting government to judge what is worth saying and what can safely be suppressed. Similar analysis attends the constitutional status of flag-burning, protected even though a person burning the flag implicitly defiles the symbol of the very freedom he exercises.

How does this analysis work with the Second Amendment, though? Does the Second Amendment guarantee people the freedom to arm themselves for, among other things, overthrowing the very government that secures the right to bear arms? Here, the extreme exercise of the right would actually bring about the destruction of the civil society supporting the right, whereas merely saying seditious things does not on its own destroy the government protecting the speech.

I've had to choose my words carefully, because there is in fact some sophistry in this line of thought. If the right to bear arms is conceived of as a natural right which the Second Amendment merely emphasizes, then an armed rebellion would not actually negate the ordered system that brought about the right, unless that rebellion could overthrow nature. Thus the apparent contradiction disappears, though one might still wonder whether it is wise for a government that is designed to be robust in protecting rights to tolerate the seeds of its own destruction.

If one's conception of the right to bear arms is predicated on the idea that rights are posterior to government, or that this right at least is an artifact of government, it seems easier to limit the right. However, it is not obvious that this should be so. Certainly the government could, through some means or other, remove the right to bear arms from its constitutional provisions. The question, though, is whether having such a right is compatible with the right's being exercised to overthrow the system protecting the right. Here the question turns out to be more difficult. Because the right would not exist at all in the absence of civil society, its exercise would lead to its destruction, not merely to overthrowing one method of ensuring its protection. If we still conceive of the right to free speech as encompassing the right to dissent against the system protecting free speech and even against the very idea of free speech, what result with the right to bear arms?

I think, and I am perfectly willing to be corrected by someone with more historical knowledge, that the Founders did not view the system they created as immune from the corrupting influences that would justify an armed revolt. Thus, the right to bear arms would extend so far as to allow citizens to keep weapons whose anticipated use would be in an armed rebellion.

None of this means that the United States government needs to tolerate a revolution or simply allow itself to be destroyed by any uprising that comes along. It simply means that "Your guns are a threat to civil order" is as bad a reason for restricting gun ownership as "Your book makes the government look bad" is for imposing a prior restraint on publication. Government indeed has a responsibility to preserve itself when it is supported by popular will. It is when the people have made up their minds to rebel that the government becomes a factional element, bereft of lawful power (which can only flow from the people as true sovereign), and the enemy of liberty.

As big government is comfortable and guns are scary and dangerous, none of this discussion will ever mean anything in the real world. If no one has rebelled yet, no one ever will. But still...remember when liberty used to mean something? Or, remember reading about a time when it meant something?


At 1:46 PM, March 23, 2010 , Anonymous Anonymous said...



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