An Absolutist Defense of the Second Amendment

“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.”

The Right to Bear Arms

Whenever innocents are massacred in a high profile incident like in Newtown, Connecticut, American natural rights come under scrutiny. It’s a natural and laudable human tendency to seek to protect innocent human beings from violence. However, blowhards immediately begin to pit one inalienable natural right against another as if human rights are somehow a zero sum game. Extremists on the left immediately begin to call for an end to private ownership of guns while extremists on the right immediately begin to call for the censorship of movies, television, and video games. More “moderate” voices begin to call for more invasion of privacy through more intrusive government background checks for gun ownership, government databases of gun owners, or for laws that can more easily lead to psychiatric civil commitment of those who have committed no crimes. When those who seek to preserve one natural right at the expense of another begin to battle in the public forum, the inevitable loser in the end is the people. Depending on which side sways the opinions of elected officials, some inalienable right is going to inevitably be alienated.

The nature of the Second Amendment as an individual rather than a collective right has previously been addressed, so the remainder of this essay will proceed with the assumption that the right to bear arms is an individual right.

The arguments used by the majority of Second Amendment advocates to defend the right to bear arms are often weak arguments that will inevitably lose in the court of public opinion. These arguments may be able to justify a small sliver of the right to bear arms, but they open up the door to a variety of regulations that will slowly erode the right until it is nonexistent.

1. Americans possess the right to bear arms for sporting purposes (e.g. hunting, target shooting)

While Americans do enjoy hunting, not as many Americans participate in the sport as many may believe. According to a study conducted by the United States Fish and Wildlife Service, 13.7 million Americans over the age of sixteen – 6% of the population – went hunting in 2011.  According to a 2010 survey conducted by the National Shooting Sports Foundation and Harris, 18.4 million Americans participated in handgun target shooting and 13.9 million Americans participated in rifle target shooting. Even if each of these sporting categories were mutually exclusive, that would only include 46 million Americans out of a total population of 314 million – 14.6% of the population. Given that many hunters hone their skills through target shooting, the total number of sport shooters is likely a good deal lower than that.

If Americans possess the right to bear arms only for sporting purposes, then many limitations can justifiably be imposed. First, the government could make the ownership of guns contingent on actually engaging in these activities. Second, the government could require that sporting guns be stored not in the homes of owners but in external government regulated facilities where they could only be “signed out” when a sportsman is about to engage in the sporting activity. Third, the government could limit the guns that may be owned to a small category of sporting guns.

2. Americans possess the right to bear arms to defend themselves and others against crime

According to the FBI, there were 1,134,527 violent crimes committed in the United States in 2011, including 12,664 homicides. It is obvious that local, state, and federal governments do not possess the ability to defend all citizens against violent crimes. While the local, state, and federal officers may be good at drawing chalk lines around homicide victims and may even be adequate when it comes to apprehending violent offenders, they cannot prevent all violent crime.

However, even with a right to defend against violent criminals, many limitations on gun rights may be justified such as strict background checks, government databases of gun owners, and limitations of the kinds of guns that individuals may possess. Low caliber guns could be deemed adequate for self defense. Furthermore, the number of guns that any individual is permitted to own could be limited.    

Furthermore, the government can further infringe upon the right to bear arms for defense against crime in creative ways. “Obamacare” has set the precedent that the government can force Americans to purchase what the government dictates. The government could use this to require that individuals purchase home security systems for their homes. The government could also waste money that it does not have at the local, state, and federal level to hire a new vast army of police officers. This would please public union officials as it would lead to more money being wasted on huge salaries and pensions for police officers. It would also please the federal government in allowing it to further militarize federal officers. Surely, if armed government officers were omnipresent, there would be little need for individuals to own guns to defend themselves. With the exception of rare events like the Fort Hood shooting, violent crimes rarely occur in areas where many armed government officers are present. Furthermore, in the Post-9/11 United States, the Fourth Amendment has been declawed. This along with increases in technology may eventually lead to a Minority Report nation where crimes can be stopped long before they are committed. With government mandated security systems in every home and a police state in place, surely the number of violent crimes would be diminished. When that happened, the Second Amendment could be declared a “dead letter” – an archaic remnant of a primitive and technologically deficient era.

3. Americans possess the right to bear arms in order to defend themselves and the nation from foreign invasion

When the United States was founded, Americans found themselves in a precarious position. The republic was militarily weak and in constant danger of being invaded by England or France. However, this is no longer the case. The United States military is by far the mightiest in the world. The United States currently spends 41% of all military spending in the world. A situation like that in the movie Red Dawn or its inferior remake – in which some foreign power successfully invades the United States – is just not a realistic fear.  

If the purpose of the Second Amendment is to provide individual and collective defense from foreign invaders, then it has indeed become irrelevant and unnecessary.

4. Americans possess the right to bear arms in order to defend themselves and the nation against government tyranny

The Declaration of Independence was an embodiment of the Lockean expression of the idea that human beings possess the natural right to dissolve a tyrannical government.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The American Colonists only declared their independence when the long list of tyrannies detailed in the Declaration of Independence had led to oppression. Without the natural right to dissolve tyrannical governments, human beings would be slaves to despots and “might makes right” would be the order of the day in terms of political theory.

Had the American Colonists not exercised their right to bear arms, the American Revolution would have been impossible. While other British colonies later gained their independence without a revolution, there is no guarantee that this would have occurred had it not been for the success of the American Revolution. The British Empire committed countless atrocities upon the subjects living in its colonies including the Qissa Khwani Bazaar massacre where hundreds of unarmed Indian protestors were gunned down. If the British Empire had not been so ravaged by World War II, it may never have granted independence to the bulk of its colonial possessions. Furthermore, armed resistance to the British Empire was present in many colonies including India and Palestine.

Congressman Ron Paul has argued in support of the Second Amendment along these lines.

The gun control debate generally ignores the historical and philosophical underpinnings of the Second amendment. The Second amendment is not about hunting deer or keeping a pistol in your nightstand. It is not about protecting oneself against common criminals. It is about preventing tyranny. The Founders knew that unarmed citizens would never be able to overthrow a tyrannical government as they did. They envisioned government as a servant, not a master, of the American people. The muskets they used against the British Army were the assault rifles of that time. It is practical, rather than alarmist, to understand that unarmed citizens cannot be secure in their freedoms.

Critics of the idea that the right to bear arms is a natural right to defend against the tyrannies of one’s own government will make many objections.

a. The United States has a democratically elected government and enough safeguards in place to prevent the possibility of becoming a tyrannical government.

Unfortunately, democratically elected governments can and do become despotic. The paradigm case of this is Germany. Following the German Revolution of 1918 – which came after the devastation of World War I – the German people overthrew the Kaiser and established the Weimar Republic. Democracy could not overcome the economic calamities caused by the Great Depression and the forced reparations to the Allies from World War I. By 1932, the Nazi Party shared control of the German Parliament with the Communist Party. On January 30, 1933, democratically elected President Paul von Hindenburg named Adolf Hitler as Germany’s Chancellor. On February 27, 1933, the German Parliament Building – the Reichstag – went up in flames. This act of terrorism – which was blamed on Bulgarian communists Georgi Dimitrov, Vasil Tanev and Blagoi Popov – was most likely a “false flag” attack perpetrated by the Nazis. Hitler convinced President von Hindenburg and the German Parliament to suspend civil rights, and they did. Within months, Hitler had gained control of Germany. A recitation of the facts of what followed is unnecessary.

There is no reason to believe that the United States is immune to the totalitarian disease that overtook Germany in the 1930s. The United States government has not always been saintly – slavery, the “ethnic cleansing” of the American Indians, the internment of Japanese Americans during World War II, the Tuskegee Experiments, the Kent State shootings, Ruby Ridge, Waco, etc. Furthermore, a coup d’état in the United States is not impossible. In 1933, a group of right wing conspirators planned to overthrow the government of President Franklin D. Roosevelt in what has become known as the Business Plot. While it never came to fruition, there are groups with enough money, power, and influence to attempt a more successful coup. The increasing power of special interests makes it possible that a coup can be “bought” rather than fought. The modern “imperial executive” – the enlarged powers of the president and the executive branch – also makes it possible that a future president could become a Caesar under the right circumstances – e.g. another Great Depression, another World War, or another 9/11 level terror attack. Many of the legal mechanisms already in place – the Patriot Act, the “indefinite detention” provision of the 2012 NDAA, etc. – already create many of the tools necessary for any president to become a fuhrer.

b.  If the Second Amendment is about the ability to resist government tyranny, then no restrictions can be placed on any arms – including machine guns, rocket-propelled grenade launchers, mortars, cannons, explosive time bombs, anti-tank guns, Molotov cocktails, and nuclear weapons.

This argument, presented eloquently by MSNBC’s Rachel Maddow, is the strongest argument against the Second Amendment. She claims that the interpretation of the Second Amendment as a safeguard against government tyranny would entail that the American people beat the United States government in an arm’s race to ensure that they have a military advantage over the military.

The first question that must be addressed is what exactly constitutes “arms” in “the right to bear arms?” Constitutional lawyer Stephen P. Halbrook has discussed this in the following manner.

The U.S. Constitution does not adequately define “arms”. When it was adopted, “arms” included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be “light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare.” That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line. The standard has to be that “arms” includes weapons which would enable citizens to effectively resist government tyranny, but the precise line will be drawn politically rather than constitutionally. The rule should be that “arms” includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then “arms” must be interpreted broadly.

The argument that the Second Amendment entails only the right to bear the weapons particular to 1789 is a nonstarter – and is frankly, not even a bench player. This argument must be dispensed with or it also renders the First Amendment pointless. If freedom of the press and freedom of speech were also restrained by 1789 standards, then one would only have freedom of speech via the printing press, written letter, or spoken word, and the government would be able to completely censor communication via telephone, radio, television, the internet, etc. By the same token, what constitutes “cruel and unusual punishment” in the Eighth Amendment would also be so restrained, and rather barbarous punishments would still be permitted.

However, the question still remains as to what constitute “arms” in the modern world. The common law definition to which Halbrook refers seems linguistically appropriate. Thus, “arms” include “modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons.” This will still bother even many gun rights advocates. The thought of street gangs like the Bloods or Crips, “militia” groups, or drug cartels possessing such firepower is worrisome to say the least.

If we turn to Halbrook’s pragmatic and political concept of “weapons which would enable citizens to effectively resist government tyranny,” what information does that provide? Two armed citizen groups in recent history have resisted the tyranny of nuclear armed superpowers – the Viet Cong in Vietnam and the Mujahideen in Afghanistan. The Viet Cong were well armed, possessing weapons including rifles, submachine guns, machine guns, rockets, rocket-propelled grenades, anti-aircraft missiles, and grenades. The Viet Cong did possess some Soviet provided tanks and artillery, but these were rarely used as part of the guerilla campaign that characterized the Viet Cong strategy. The Mujahideen were also very well armed in their struggle against the Soviets. The main weapons employed by Afghans and their allies against the Soviets were AK-47s, PK light machine guns, and RPG-7 anti-tank grenade launchers. The Mujahideen later acquired heavy mortars and Stinger SAMs – portable weapons used to attack helicopters. Many of these weapons – which were later employed against the United States in Afghanistan and against innocents in terrorist attacks – were provided by the United States. However, that is a can of worms for another day.

Back to the question of what the Founders intended by “the right to bear arms” and what it means today for “arms” with greater firepower such as Stinger missiles and grenade launchers. Private merchant ships at sea were armed even in times of war through the nineteenth century. During the early years of the Republic, the federal government would issue Letters of Marque and Reprisal to authorize private vessels to attack and capture enemy vessels. This power is listed among the enumerated powers of Congress in Article I, Section 8 of the Constitution. Armed ships, it can be argued, were the state of the art of firepower of the Revolutionary era and much of the nineteenth century. Privately owned cannons were rare – but not unheard of – throughout the nineteenth century, particularly in private forts in the frontier. No serious attempt to ban cannons or the like was made until the National Firearms Act of 1934 (NFA) which was later amended in 1968. However, the question of whether the NFA – which effectively bans weapons such as machine guns, short-barreled rifles, short-barreled shotguns, silencers, and “destructive devices” such as grenades, explosives, missiles, poison gas weapons, etc. – is actually Constitutional cannot be assumed without begging the question.

Perhaps the question concerning Stinger missiles and grenade launchers can be sidestepped. As previously mentioned, the United States is in no danger of foreign occupation. Perhaps, then, the Viet Cong and the Mujahideen are not the appropriate standards of comparison. The “Arab Spring” of 2010 led to the overthrow of governments in Tunisia and Egypt without the use of heavy weaponry. Likewise, the Iranian people ousted the fascistic Shah Mohammad Reza Pahlavi in 1979 without the use of heavy weaponry. The “heaviest” weapons that the Iranian revolutionaries used were homemade Molotov cocktails while the Shah employed tanks and helicopters against them in narrow barricaded streets. The Iranian Revolution succeeded because increasing numbers of the Shah’s soldiers refused to continue firing into crowds of their countrymen. Many armed policemen actually changed into civilian clothing during these incidents in order to avoid shooting at their fellow Iranians. Unless one is willing to claim that members of the American military are morally inferior to Iranian soldiers in 1979, then there is no reason to believe that American military personnel will massacre their fellow Americans if a justifiable uprising occurs in resistance to tyranny. The Iranian Revolution began – contrary to Neoconservative propaganda that would have it as being a radical Islamic movement – as a combined religious and secular movement in opposition to the Shah’s heavy handed tactics of violating freedom of expression and freedom of religion and using military tribunals, torture, and assassination against his own people. Therefore, it is unlikely that the American military would kill its own people if the president ordered it to fire upon Americans as a matter of oppression rather than as a matter of putting down an insurrection. If Progressives such as Rachel Maddow believe that American military personnel are sociopathic in ways that Iranian soldiers were not in 1979, then that is her problem.     

The issue now becomes not a matter of overthrowing a technologically advanced nuclear superpower in a war, but of defending oneself against a tyrannical government until military personnel and their commanders refuse to continue oppressing the people. For this purpose, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons appear to be unnecessary. Rifles, shotguns, and semiautomatic weapons appear to be necessary for such limited and temporary self-defense against tyrannical government. Machine guns remain a borderline case. However, armor-piercing bullets, which were banned federally in 1986, will likely be necessary to temporarily resist armed government tyranny.

Contrary to what Maddow and others believe, the natural right to resist tyranny implicit in the Second Amendment does not include the right to preemptively. The precedent of how tyranny is to be resisted was set in the American Revolution. The American Colonists did not act until their natural rights had already been egregiously violated by the British Crown through the Stamp Act of 1765 and other tyrannical acts. The violent act that set off the Revolution was the invasion of Concord, Massachusetts by British General Thomas Gage on April 18, 1775, in an attempt to disarm the citizens. The Battle of Lexington and Concord ensued. The American Colonists sent word to the King that they were loyal to him but that the British Parliament had no authority over them because the Colonists were not democratically represented in Parliament. The King’s response was to declare the Colonies to be in a state of rebellion and to suppress them with violent force. Therefore, self-defense against tyrannical government is just that – defense and not violent unprovoked offense.    

Gun Regulation

In Heller v. Districtof Columbia (2008), the Supreme Court held that the right to bear arms as addressed in the Second Amendment is an individual right. In McDonald v. Chicago (2010), the Court held that the individual protection of the right to bear arms of the Second Amendment is incorporated through the Fourteenth Amendment and applies to the states. In Heller, the Court also stated that some forms of gun regulation are Constitutional.  

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Nevertheless, as the Supreme Court is no more infallible than the Pope, the question remains whether such gun regulations are in fact constitutional. The Second Amendment unambiguously states that “the right of the people to keep and bear Arms … shall not be infringed.” Interestingly, there was not a single gun control law in the United States until 1837 when Georgia banned the sale of knives and all pistols except for horsemen’s pistols. In 1845, this law was declared to be unconstitutional by the Georgia’s Supreme Court, which cited the Second Amendment of the United States Constitution in overturning the law. The first federal gun control law was a 1927 law prohibiting the mailing of small firearms. The first substantive federal gun control law was the aforementioned NFA. The fact that there were no substantive gun control laws for the first century and a half of the history of the Constitution is very telling. At some point it was decided that “shall not be infringed” had no meaning. If the Founders had intended for the right to bear arms not to include concealing weapons, purchasing arms without government intrusion, or carrying arms into certain locations, then one would think they would have clearly stated that. If the right was not as robust as originally thought, one would think that it would have taken less than 150 years to determine that.

Rights are inalienable and endowed by nature to human beings in virtue of them being rational and autonomous creatures. The government does not grant these rights. There is no justification for the argument that former felons or those considered “mentally ill” by the uncertain and largely empirically unfounded social science of psychiatry lose their natural right to bear arms in self-defense against tyranny. There is also no right of the government to violate the privacy of human beings through background checks or gun owner databases. While private entities have the right to forbid firearms – or anything else – on their property, the government possesses no such right. Thus, much of what constitutes “gun control” legislation is unconstitutional.

Empirical Evidence

While the natural right to bear arms that is given voice in the Second Amendment is not an empirically based right, it is instructive to examine some empirical data concerning guns. While hard data is not available, the best estimates of homicide rates in the United States indicate that homicide rates dropped from about 28 per 100,000 at the beginning of the Republic to about 9 per 100,000 when the NFA was enacted in 1934. Somehow without gun control legislation, homicides had been dropping drastically in the nation. Homicides continued to drop dramatically from the early 1930s through 1957. In 1957, the homicide rate in the United States was 4 per 100,000. However, this drop can be attributed to ending Prohibition – and the effect that it had on “gangsters” – more felicitously than it can be attributed to the “success” of the NFA.

Homicide rates began to rise again after the 1950s, cresting at 9.8 in 1981 and again in 1993 before dropping again down to 4.8 in 2011. Many attribute the decline in homicides since 1993 as the direct result of the Brady Bill (1994) – which required a five day waiting period and a background check in order to purchase a firearm. However, the rates of all crimes – violent and nonviolent – in the United States declined at a similar rate during that period. Given that crimes that did not involve a firearm declined at the same rate during that period indicates that a factor other than the Brady Bill was instrumental. There are many possibilities including stricter sentences, increased imprisonment of offenders, the increased availability of abortions since Roe v. Wade, smarter policing strategies, the “graying” of America, etc. Nevertheless, the effect of the Brady Bill is not “the only game in town” in terms of explanatory theories.

What factors most correlate with homicides? There is a negligible correlation between the percentage of gun owners in a given state and that state’s homicide rate (r = .09356971148464956). There is, however, a strong correlation between poverty rates in a given state and that state’s homicide rate (r = .6666662805118512) . While “crimes of passion” will always occur, many homicides that are clearly caused by economic factors can be prevented by an improvement in the national economy. Crime rates in the United States showed an increase in 2011 with increase in assaults (up 22%), burglary, theft, and motor vehicle theft (up 11%), and household burglary (up 14%). This may be an indication of the effect of the Great Recession upon crime rates in the United States. Time will tell.