The Right to Weapons

I.  On the Constitutional Freedom of Americans

Regardless of other customs, international laws, or even natural laws, rights, and duties, the Constitution of the United States of America guarantees to her citizens the right to bear arms.  This is well-known: it was established by the Second Amendment, which I quote:

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.

It is often quoted and recorded with two additional commas, after “militia” and “arms”: I believe that any difference in meaning in somewhere between insubstantial and non-existent.

The context of miltia (and an era in which privateering was an accepted part of warfare, for instance) indicates that at the very least this provision guarantees to each American citizen the right to own and handle any weapons up to whatever would be regular for an infantryman.  Common-sense, I think, dictates that this does not include a right to own an Abrams, an A-10, or an Apache.  Consider, as an analogy, that the Colonial militias seem to have been short on cannon (an 18th-century analogue) and immediately went to get some when they had to fight a real war.  However, given the modern conditions of war, it does mean that the long-standing ban on private ownership of automatic weapons is, on a strict reading, probably un-Constitutional.

Further, the Fourteenth Amendment extends all Constitutional protections – including, logically, the right to arms – against State authority.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Again, on literal interpretation, various state gun-control laws are probably un-Constitutional: given the widespread activism of various groups, I am surprised that more have not been challenged on these grounds.  (The bans enacted by more local authorities – cities or counties where applicable – I think have to be considered Constitutionally valid, as more local authorities are almost universally unrestricted by the Federal Constitution.)

II.  A Short Note on the Most Recent “Gun Control” Attempt

Recently a measure S.150 – Assault Weapons Ban of 2013 was introduced and promptly defeated in the Senate.  There was significant backlash against those who defeated the bill – everything from accusations of “cowardice” to allegations that they had been “bought” by the gun lobby (given Washington culture, not improbable; but again, given Washington culture, there is a “lobby” for just about everything: the accusation is without significance in any but an absolutely moral, Day of Judgment, sense even if true).  Not involved in such name-calling was any investigation into what was actually in the bill.  Here is the short version, the bill’s subtitle:

A bill to regulate assault weapons, to ensure that the right to keep and bear arms is not unlimited, and for other purposes.

“To ensure that the right to keep and bear arms is not unlimited“?  What is this, a direct assault on the freedoms in the Second Amendment?  What part of “shall not be infringed” did we not understand?  Alright, that was fake outrage and cheap shots: I will instead be charitable and suppose that the writer was more considering himself to be making a point similar to mine about artillery above, but his choice of words was poor.

What is actually in the bill?  I have read through it, and it consists of essentially three points:

1. A lot of legalese justifying the decision and defining or re-defining terms and objects limited by previous legislation.  These parts mostly focus on “assault weapons” and defining legal magazine capacities.

2. A long list of weapons now to be banned or regulated.

3. A longer list of weapons not banned or (as heavily) regulated – I think these are older (“grandfathered”) models, but I am not familiar enough with arms to say for sure.

The whole thing is basically an un-Constitutional publicity stunt, further expanding restrictions which, as explained above, are themselves illegal.  The only worthwhile provision comes at the end, and would have established a study to report on conditions around mass shootings.  And that, really, should have been a separate bill and would have passed without comment.

And “background checks”?  Not mentioned at all, except that the relevant portion of US law – which already requires such checks, as best I can make out – would be amended to reflect the new provisions.

III. The Limits of Rights

While I am talking about background checks, let me make it clear that there are cases in which the rights which the ordinary innocent citizen enjoys are in fact not rights at all for some in unusual circumstances.  I believe it is self-evident that criminals – especially violent criminals – have committed acts which include the penalty of forfeiture of some rights, and the right to arms is one of the most obvious which is forfeited by the guilt of a violent act.  The insane, as well, by reason of medical unfitness, would rightly not be guaranteed any right to arms.

If the violent criminal or the insane man is not in possession of a right to arms, then it also follows that a dealer has not only a right but a duty not to sell to such persons, and some system should be in place so that it can be avoided.  The exact methods I have no strong opinion on.  If given carte blanche to install whatever laws I see fit, I would probably come up with some sort of national ID system, which would note relevant restrictions, but maybe I just read too much science fiction.

IV.  Is the “Right to Bear Arms” Actually Wise or Just?

I noted in the beginning of this post that the Constitutional rights of American citizens are not necessarily identical with natural rights.  I noted immediately above this section that even in a normal and healthy society, certain persons might justly be deprived of rights that are normal and natural.  Do either of these caveats apply here?

It seems to me inarguable that a right to personal self-defense exists; that if weapons exist, then aggressors may use them, and that principles of proportionality indicate that the same weapons may therefore be used in defense.  Carrying of personal weapons – at whatever level of technology exists – is therefore just.

The state of American society – the sheer number of violent crimes, and the frequency of mass-victim crime – suggests to many that there are problems which the existence of these rights may be exacerbating.  But this does not hold up to inspection – the problem appears to be more specific than that.  Chicago’s crime rate – and its draconian gun laws – are well-documented; in general the problem might be summed up as, “There are lots of guns, a few violent idiots, and then we set up these ‘target areas, I mean gun-free zones‘.”

It is no doubt true that the removal of guns completely from American society would result in fewer shootings.  It is also true that the complete removal of pigs from American society would result in fewer people eating bacon.  I see the two as approximately equally likely to happen, and – despite my own essentially complete disinterest in firearms of any sort – both attempts are equally problematic.  The removal of pigs would probably be the smaller problem.

V.  The Test-Case for Tyranny

We should not forget, as well, that the American system of government was set up in full consciousness that government tyranny is possible – even an historical tendency – and that government overreach sometimes can grow to an extent which demands resistance.  It is a lasting irony that the current Federal government has become practically as removed in all ways except geographically, and probably more interfering in all ways, than the British crown which the colonies disowned.

A militia was considered necessary to a free state, not merely to resist the enemy foreign but also the tyrant domestic – and the effectiveness of this protection of the People’s arms was demonstrated depressingly effectively by the length and bloodiness of the American Civil War.  Whatever your opinion of Confederate complaints – in my understanding, they were insufficient to justify the secession – the issue of the resulting war was very much in doubt for several years and – personal pet opinion! – very likely resolved in the Union’s favor as “quickly” as it was due only to superiority in naval force.

The destruction the Civil War brought is likely a reason that United States has not yet faced another secession or rebellion of significance.  There are other more important reasons: the growth of Federal power, the restrictions noted above on armaments making such revolts impractical, and (perhaps most importantly) the growth of national feeling as a result of foreign wars.  It will take significant and positive oppressions, I believe, before citizens of the United States will be willing to separate themselves en masse.  It is not a good sign that such infringements are being enacted (or extended, depending what other complaints you may have).  There are times when weapons control arguments might carry some weight, even with me: times like these when I see our government drifting into tyranny are not those times – again, even though I currently own no weapons myself.

VI.  A Final, Vaguely Related, Thought

I sometimes wonder whether a draft would actually be good for the United States.  Then I think about it again, and realize how far the possibility of the question means we have come from the founding.  A Federal draft?  Would any of the original States have stood for it?  Now, of course, we have the Selective Service program, and even though it has not actually been activated as a draft in quite a while its existence does not make anybody I know particularly happy.

Why even consider a draft, though, under modern conditions?  Three reasons:

1) It would alleviate much of the fear of weapons we see in the culture today.  Perhaps it would intensify some people’s dislike – on seeing what weapons really can do – but it would be a more rational opinion.

2) One recurring theme I see in history is that a free nation defends itself.  The closest I have come to being invested in the national defense is having relatives in the military.  Probably I would not make a particularly good soldier – but might it not be better if I and everybody knew at least what “be a soldier” really means?

3) It would increase the capacity of The People for self-defense.  Under this heading, what I suppose I would really like is to see a revival of state militias, and a state-based draft.  But, although there are still twenty-odd organizations which might be a step in this direction, I guess that adding new ones is not likely to happen at this point without Federal action – which is commentary on our situation in its own right, I suppose.

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