Law and the Created Order
11/1/12 at 02:45 PM 2 Comments

The Second Amendment: Guarantor of a Free Society

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U.S. House of Representatives
Howard Chandler Christy, Scene at the Signing of the Constitution of the United States, 1940.

In the second Presidential Debate of this election cycle, President Obama was asked, “What has your administration done, or planned to do, to limit the availability of assault weapons?”

The President responded, “We’re a nation that believes in the Second Amendment, and I believe in the Second Amendment. We’ve got a long tradition of hunting and sportsmen and people who want to make sure they can protect themselves.” This response should be troubling to all Americans whether they are gun owners or not. The response that he gave reveals some fundamental problems with the President’s interpretation of our Constitution, his understanding of the nature of our rights, and his view of the role of government in our lives.

Many pro-gun advocates rightly appeal to the fact that our nation was birthed by militias that were made up of ordinary citizens, many of whom carried their own weapons. They left behind their families and their jobs as farmers, blacksmiths, preachers, and lawyers to fight for our nation’s independence from foreign rule. Had the British crown banned gun ownership, those who fought in the militia would not have had the arms with which to fight. These were the same arms, it might be instructive to add, that they used privately and personally to protect their herds from wild animals, their homes from intruders, and to hunt for food for their families. The Founding Fathers, these advocates say, did not include a right to bear arms in our Bill of Rights for the sake of hunting and recreational target shooting. This argument is absolutely accurate. No question.

The deeper issue, however, is the purpose that the Second Amendment plays in the larger context of our Constitutional system. At the time that our Constitution was written, most political theorists, especially here in the United States/Colonies, held to a political and legal philosophy that was grounded in the natural law. Today, even the most conservative judges and theorist tend to be legal positivists or realists. The philosophical commitments that one makes at the most fundamental level impact the way in which he or she reads the Constitution.

Let’s briefly define these schools of political theory and the implications that each has for the interpretation of the Constitution. A natural law theorist would argue that there are rights that each of us possesses simply by virtue of our existence. We are created beings and, in the language of the Declaration of Independence, are “endowed by [our] Creator with certain inalienable rights.” These rights are natural rights that are rooted in natural law.

Legal positivism finds its first expression in the English-speaking world in the writings of Jeremy Bentham. A positivist would argue that law is something that does not exist divorced from its canonization—law is something that is “posited”, or stated by an authoritative source and a law is only as authoritative as its source. Validity in a positivist system is tied to source, and therefore detached from morality. The law, therefore, is a human construct and no source of law can be understood to come from above or beyond any human institution.

Legal realism is much more difficult to define, but like positivism, it views the law as a construct. The most famous realist is Oliver Wendell Holmes who famously wrote, “The life of the law has not been logic; it has been experience.” Not all legal realists would agree with this, but it is fair to say that legal realism understands law to be more descriptive of the way in which the world actually “works” than as a system that seeks to guide it logically and consistently. Still, the source of law is not found outside of human institutions.

Natural law theory is the only system, therefore, that recognizes transcendent, inviolable rights that are not granted by a king, a government, or some other human source. From a natural law perspective, a just government is one that recognizes, rather than creates law. In a positivist or realist system, the law as a created construct is dependent upon its source which is, most of the time, a legislature or monarch. From a natural law perspective (i.e., the perspective of the Framers), the Constitution is simply a human structure that is built around and upon pre-existent principles and individual rights and liberties. From a positivist or realist perspective, the Constitution is a vehicle for granting rights and one of those rights is simply the right to bear arms. If the Constitution is altered or truncated and that right is lost, there is no moral value that is trespassed in the process.

At this point, some may think that I am preparing to defend a position that there is a natural right to bear arms. Some may make this claim, but I do not. I think that the right to bear arms is related to rights which are indisputably natural rights (for example, “life, liberty, and the pursuit of happiness”), but it is not a natural right itself. Since the Constitution is built around inviolable rights that predate it and are granted to men by a higher authority, the proper understanding of the Second Amendment in the U.S. Constitution is to understand it as the mechanism by which naturally free men protect their natural freedom from the government that the Constitution creates. It is the government and the Constitution that are the human constructs, and the Second Amendment that is the “back-up plan” in case the government attempts to violate inviolable rights.

When President Obama indicates that he supports the Second Amendment because of our “long tradition of hunting and sportsmen and people who want to make sure they can protect themselves,” he is confusing not only the original intent of the Framers with regard to the Second Amendment, but with regard to their original intent with regard to the larger construction of government. Government is not to be trusted, but to be looked at with suspicion. Government must be countered from some authority on the outside. Since “we the people” constructed the government, “we the people” retain the right to reshape, reform, and depose that government as well, and the Second Amendment is the guarantee that we will always have the means to do that when other means fail.

Our rights are not a gift from our Founding Fathers—they are gifts from our Heavenly Father. No human institution has any authority that is higher, and therefore, no human institution can deny us of those rights. This is why slavery was evil, it is why abortion is evil, and it is why any encroachment on our rights must have a counter balance. It is an indisputable fact that every human institution tends toward corruption and human governments are no different. In order for free society to maintain its freedom, it must be have a mechanism by which to protect that freedom. There may be other or better ways to do that than our Second Amendment, but that’s the mechanism that we have and any threat to it is a threat to every natural right that we enjoy.

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