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Just Another Essay



Life, Liberty, and a Well-Oiled Handgun

Essay Posted July 1, 2008 by James E. Nelson

I received an email late last week that said, “I was wondering about your thoughts on the new ruling about gun ownership by the supreme court.” That question is essentially a Libertarian question because the case the Supreme Court considered last week was filed by the libertarian Cato Institute and not the usual pro-gun suspects such as the NRA. But it turns out that I take a rather different view than most Libertarians (including the Cato Institute) on the issue, so I decided to flesh out my answer to this question in an essay.

First, since not everyone pays attention to the Supreme Court, a brief overview is in order. Thursday, June 16, in a 5 to 4 decision, the Supreme Court overturned Washington D.C.’s local gun law. The law was one of the first acts passed by D.C. authorities after they achieved the right of home rule in the mid-70s. It banned hand guns and required that hunting rifles be made unusable (disassembled, the use of trigger locks) for storage. The Supreme Court has avoided this issue for the last 200 years, so this is a landmark decision both in terms of its historical precedent and it’s far-reaching effect. (Several U.S. cities have gun laws similar to the D.C. law.)

An Historical Perspective

I assume that everyone reading this essay knows that the original intent of the 2nd Amendment had to do with state militias. Of course state and local militias (in the form they took in early American history) are long gone, so the context of this amendment has changed radically. Even though the context has changed, it’s worth considering that original context of the Bill of Rights.

The single biggest struggle in writing the constitution was the federalist question. Just how powerful would the central government be? Other countries of the period had nearly all-powerful central governments, but the U.S. chose a relatively weak central government that oversaw a federation of self-governing states. There were impassioned arguments for both a strong central government and a system of loosely affiliated and semi-autonomous states. In the ends the two factions compromised and the constitution reflects this compromise between strong central power and strong state power.

But, as with all compromises, there were some holes in the original document and the result was the almost immediate passage of the first ten constitutional amendments. The message of the Bill of Rights was that as the ongoing struggle between federal and state power progressed, the individual retained the fundamental rights of “life, liberty, and the pursuit of happiness.”

Today we talk about the 2nd Amendment in terms of individual rights, and specifically the question of whether American citizens have a constitutional right to own fire arms, and whether that right extends to hand guns, or just to hunting rifles. But the enduring effect of the 2nd Amendment has been in relation to the federalist question. Until recently we had no national police force. Of course in recent years our police force has being nationalized to a surprising extent, beginning with the FBI and the “revenuers,” whose job was largely taken over by the Bureau of Alcohol, Tobacco, and Firearms, and more recently Homeland Security officers and the Transportation Security Authority.

The proof that the 2nd Amendment has radically changed meaning since it was written is that the formation of all these various flavors of a national police force, which pre-empt local authority, have not triggered 2nd Amendment crises. Even though this was the original context of the amendment, the presumed meaning of that amendment has changed so radically that this slow process of federal police powers co-opting local police powers has been challenged on the basis of privacy rights rather than the 2nd Amendment question of militias, police, and who has the right to bear the arms that protect us as a society.

Polite Society Doesn’t Shoot Each Other
(or, why it was inevitable that the interpretation of the 2nd Amendment would change radically from its original context)

Effective law enforcement requires one of two things. On the one hand, when the majority of society respects each other and wants to get along, law enforcement is primarily benign. In this system, which is the historic American law enforcement system, law enforcement is there to keep honest people honest and then to root out the occasional crook or violent person. In such ordered societies law enforcement can assume that society has a deep respect for the law and respond with a fairly light touch.

But not all societies are polite, and in that case, law enforcement requires a heavy hand. When society is not ordered but chaotic and violent, law enforcement nearly always contains the element of fear and surprise (elements often contrary to civil rights). Both systems can be effective, and depending on the society, one system is preferable to the other. But in violent and unruly societies a heavy hand that ignores civil rights is often the only effective form of governance.

The checkered U.S. history of nation-building is checkered largely because of this principle. Take Iraq as an example. It was not and is not a polite society. I am not defending Saddam Hussein, but his draconian terror tactics were quite effective at maintaining order in a society that had very little respect for either each other or the law. When well-meaning Americans tried to establish a body of law that assumed people were polite, the results (at least from the historical perspective up until June 2008) were disastrous, and the nation devolved into a savagery so severe that by many accounts, the majority of Iraqis long for the “good ol’ days” under Saddam Hussein.

U.S. law has mostly assumed that we are polite society. There have always been exceptions—the wild west, the Appalachians, certain big city neighborhoods—but in most of the country most folks were law abiding. But somewhere along the line that began to change. Neighbor no longer trusted neighbor, and for seemingly good reason. Violent crime was on the increase. The United States has always been a violent nation, but over the years, that violence seems to have become so widespread that there is hardly any escape from it.

And in that transformation we Americans discovered that law enforcement couldn’t keep us safe. American style law enforcement designed for polite society was inept in the face of an increasingly violent society that had a steadily decreasing respect for the law. Theories for why this is happening are prolix. Fundamentalists blamed it on the church’s move away from the doctrine of inerrancy. Libertarians blamed misguided laws like prohibition and the national 55 mph speed limit (ie, laws that are “made to be broken” and result in a general desensitization toward laws). After the Reagan revolution bitter and disenfranchised Democrats blamed the Republicans. The Republicans blamed liberal activist judges who wrote laws instead of interpreting the law. The Klu Klux Klan blamed the blacks. The Black Panthers blamed “the man.” Very few took responsibility for the sinfulness of their own unrepentant hearts.

And in this same process, the assumed meaning of the 2nd Amendment changed radically. Originally it’s context was states and individual rights vs. the overarching power of the Federal government. But as I observed above, that discussion has turned into a privacy debate. And this transformation is what has put us into the pickle we find ourselves today.

What Does the Second Amendment Mean Now?

Because government at all levels is so inept at maintaining public safety, it is necessary for citizens to own gun so they can protect themselves. ... When stripped of all the pretty language this is the basic position of the pro-gun lobby. The NRA and other defenders of the 2nd Amendment have turned the amendment into a public safety issue. In short, since the government can’t protect us, it is vital that the government allow citizens to kill other citizens in the pursuit of protecting themselves.

It is a terribly cynical view of American society, but for those who are honest, it is a painfully accurate view. The authorities are seemingly powerless to prevent crime; the only thing they can do is put violent criminals behind bars after the fact. The perception is that in America’s big cities it is increasingly a choice of shoot or be shot. Strip away the veneer and the honest observer has to admit that America is a lot more like Iraq than most of us would care to admit.

This has essentially been the stance of the gun lobby for years. But in last week’s decision, the Supreme Court came to the same conclusion. It was the government admitting that it was powerless to protect its citizens and that citizens therefore had the “constitutional right” to take the law into their own hands for the purpose of self-protection.

What Does the Supreme Court Decision Mean?

So, is this a victory for individual liberty? Because of the twisted history of how the interpretation of the 2nd Amendment has changed, the Supreme Court’s current defense of the Bill of Rights has ultimately turned into yet another blow in the fight against a Federal Government that is currently hell-bent on taking all our individual liberties away.

One of the most ingenious aspects of our system of government is that each state and municipality does not have to be exactly the same. Iowa can have a 65 mph speed limit on their interstates and 55 mph limit on the backroads. Nebraska can push that up to 70 and 60. South Dakota can increase it to 75 and 65. Many counties across the south and midwest don’t allow the sale of alcohol, many others don’t allow alcohol sales on Sunday. But in many places you can purchase alcohol any time you please. In Texas and Alaska you can openly carry weapons of all sorts. In Chicago and San Francisco hand guns are illegal.

This patchwork of differing laws reflects local preference and sensibility. And this was one of the primary points of the federalist system of government that the founding fathers intended. If someone wants to own a handgun they can move from D.C. to Virginia. On the other hand, if they want to avoid getting the death penalty after killing someone with their shiny new handgun, they can move out of Texas to a state with no death penalty.

And federalism is one of the most important protections of our freedom and liberty that we have. When bad law is passed in one jurisdiction, people can move to another jurisdiction. People who are afraid of the unexpected turns life can toss our way can move to a mommy state like New York or Massachusetts while those that prefer more freedom and liberty, and the responsibility that entails, can move to New Hampshire or Montana.

Most libertarians would agree with the Cato Institute that the Washington D.C. law was rather heavy handed. Most constitutional scholars are also in agreement that the 2nd Amendment defies a clear and obvious interpretation in our modern society. It is hard not to conclude that in spite of Judge Samuel Alito’s claims that he is a Constitutional Originalist, that this latest decision (which he wrote) is nothing other than the same judicial activism that Conservatives and Libertarians have historically despised.

And that can lead to only one conclusion. This supposed small victory for individual liberty comes at the cost of one more heavy blow against states’ rights and another frightening power grab by a Federal Government that is currently hell-bent on taking as many individual liberties away as possible.