The Bill of Rights, the first ten amendments to the United States Constitution (Photo credit: Wikipedia)
If I were to construct an argument to justify my right to “keep and bear arms” (including alleged “assault rifles”) under the 2nd Amendment, that argument might consist of several of the following parts:
1) Founders’ Purpose for 2nd Amendment
As I explained in The Purpose of the 2nd Amendment, we can learn the Founders’ intended purpose for the 2nd Amendment by reading the “Preamble to the Bill of Rights”.
According to that Preamble, the purpose for the 2nd Amendment is not to empower Americans to hunt deer or ducks, or defend against an attack by Indians or even an invasion by Great Britain. We retain the right to “keep and bear arms” so that we can shoot officers, officials, judges, bureaucrats and employees of the federal government who “abuse or misconstrue” their powers under The Constitution of the United States. In other words, the 2nd Amendment is intended to guarantee that we have the necessary “equipment” to shoot those members of our own federal government who attempt to subject this nation to despotism (tyranny).
Nevertheless, even if the idea that the 2nd Amendment guarantees our right “keep and bear arms” (own necessary equipment) sounds fairly reasonable, it’s still hard to believe that the original purpose of the 2nd Amendment was to shoot and even kill federal officers, employees, etc. Nevertheless, if you’ll take time to read the “Preamble to the Bill of Rights,” you’ll see that the intended purpose of the 2nd Amendment is to retain the right of the People to shoot those officers, officials and employees of the federal government who claim to be endowed with powers under the Constitution but who nevertheless “misconstrue or abuse” their “powers”.
2) The 9th Amendment:
“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
In other words, just because the Constitution expressly references a number of “rights” (say, Freedom of Speech) those are not the only rights secured by the Constitution. If the People are entitled to other rights that were previously declared to exist by recognized authorities other than the Constitution, those rights can be accessed and claimed under the 9th Amendment.
For example, those of us who are men and women (but not “persons,” “inhabitants,” “occupants,” “residents,” “citizens,” etc.) and members of the “People” can access the God-given, unalienable Right to, say, “Liberty” (as expressly declared in the “Declaration of Independence”) by means 9th Amendment to the federal Constitution.
(Why do I believe the “people” claim such rights while the “citizens,” “residents,” “occupants,” etc. might not be able to make such claims? Because I view law is a word game very similar to “Simon Sez” or “Mother May I?”. If you don’t say exactly the right words, you will probably lose in court. The 9th Amendment does not include the words “citizens,” “residents, etc. but does include the word “people” as the intended beneficiaries of 9th Amendment rights. If you don’t expressly identify yourself as one of the “people,” you’ll probably have no standing under the 9th Amendment and your claims of rights under the 9th Amendment may therefore be rejected.)
It’s possible that one of the recognized sources of rights that We the People can rely on may be the Bible where rights (as the corollary of duties) were granted to “people” or perhaps to “God’s people.” However, I haven’t yet pursued that line of conjecture so it will have to wait for another time.
For now, it seems clear that the other sources of rights that must be recognized under the Constitution must include: a) the “Declaration of Independence” (A.D. 1776); b) Articles of Confederation (A.D. 1781); and c) the Northwest Ordinance (A.D. 1787). (See, The Organic Law of The United States of America)
Therefore, remembering that the 9th Amendment may only apply to those who expressly identify themselves as one of the “people” of The United States of America and/or one of the “people” of one of the States of the Union—not a citizen, inhabitant, occupant, resident, etc.–can we find reference to any rights referenced in the “Declaration,” Articles of Confederation, or North West Ordinance that might affect the 2nd Amendment?
If we could, the 9th Amendment would open the door for claiming those rights in a court of law. (See, “A 9th Amendment Road Back to Unalienable Rights”.)
3) The “Declaration of Independence”
I plan to one day read the Articles of Confederation (A.D. 1781) or the Northwest Ordinance (A.D. 1787) with an eye to finding “other” rights that might be claimed under the 9th Amendment—but I haven’t done so, yet.
However, I have glanced at the “Declaration of Independence” from time to time, and I recall a few bits of text that expressly or implicitly declare various of the People’s “rights” that might be claimed in support of the 2nd Amendment’s right to keep and bear arms.
For example, the “Declaration of Independence” (the cornerstone for The United States of America) begins with five paragraphs that explain the premises and principals underlying the proposed separation from the government of England, followed by 29 paragraphs listing “facts” that would justify such separation, followed a one paragraph conclusion and a one paragraph pledge.
1st Paragraph to the “Declaration of Independence”
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
The “people” are entitled by the laws of Nature and of nature’s God to claim certain rights. This opens the door making claims on rights found within or implied by the Bible.
It’s worth noting that, to significant degree, the Founders justified their resistance to King George and English government on spiritual grounds. The first American Revolution was not justified by simple concerns of politics or commerce, but was instead ultimately based on rights and duties found in our common faith. It’s reasonable to suppose that the success of any future American Revolution might have more to do with the people’s faith than with the level of political oppression or commercial poverty.
Before you start talking “revolution,” you’d better first talk “faith”.
2nd Paragraph to the “Declaration of Independence”
“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.”
The “people” are composed of men and women, but (under the word game called “law”) probably not “citizens,” “residents,” etc.
More, “men” (as “people” or part thereof) get their most important rights—their “unalienable Rights”—from God, Himself, as an attribute of their creation (not birth).
Here (in the Declaration’s second paragraph) we see evidence of officially-recognized rights flowing to the “people” from God. These God-given, unalienable Rights are accessible under the 9th Amendment and, by example, may open the door to further claims of rights under the Bible.
More, these God-given, unalienable Right are declared to be “self-evident” truths. That means no evidence is required to prove their existence. These God-given, unalienable Rights are the axioms on which this nation was built. Because these unalienable Rights are “self-evident,” no American court should ever deny their existence. However, if you try to claim such rights in some capacity (“citizen,” “resident,” fiduciary, etc.) other than that of one of the people, your claim might be denied for lack of standing.
I’m not suggesting that a claim of right under the Bible would be easy. I am suggesting that a claim of right that was based on a number of authorities—including the Bible—would be stronger than a claim of rights made with no biblical foundation, whatsoever.
3rd Paragraph to the “Declaration of Independence”
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”
The primary duty, the primary reason for the existence of de jure government, is to secure the God-given, “unalienable Rights” to each man and woman of the people.
More, all “just powers” are derived by the de jure government from the people and by the consent of the vast majority of people.
If government claimed a power that was not derived from the people or was taken by force from the people and without the people’s consent, it would be “unjust” for that power to be exercised against the “people”. (But it might not be “unjust” to exercise that same power against the “citizens,” “inhabitants,” “residents,” “occupants,” etc..)
Further, insofar as the Preamble to the Bill of Rights declares the purpose of the Bill of Rights (including the 2nd Amendment) is to prevent “misconstruction or abuse” of the “powers” of the Constitution, it appears that anyone acting in the capacity of an officer, official, politician, or employee of the federal government who exercises “unjust powers” (powers taken from the People but without the people’s express consent) would thereby “misconstrue or abuse” the constitutional powers of his office or employment. This “misconstruction or abuse” might thereby create a “right” in People to shoot such power-grabbing officers and employees if no other means could be found to stop such misconstruction/abuse/unjust-exercise of powers.
In other words, suppose we find some jackass in federal government who routinely misconstrues, abuses, or unjustly exercises powers associated with an office or employment under the Constitution. What do we do? We sue him in federal court, or we might even file criminal complaints with a federal prosecutor.
But what do we do if the courts and prosecutors are just as corrupt as the jackass of whom we complain? What if the courts and prosecutors and politicians refuse to allow us to sue or prosecute the jackass who’s abusing his alleged “powers”? What if the government comes to protect other members of the government who “misconstrue or abuse” the powers of the Constitution?
For example, what if some of the officers of the government grant immunities to government employees who violate the constitution by “misconstruing or abusing” their powers under the Constitution? What if the government bands together to grant itself “immunities” from suit or prosecution by the People for violating the Constitution? What if government bands together to protect even its overtly criminal members against the people’s right to justice?
Must we simply allow and endure the injustice committed by a governmental thug to slide?
4th paragraph in the Declaration answers that question:
“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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
First, paragraph 4 of the Declaration declares that the “People” have a right to “alter or abolish” any government that becomes “destructive of these ends”.
What “ends”?
Those “ends” were described in the third paragraph: to “secure” our God-given, unalienable Rights to Life, Liberty and the pursuit of Happiness declared to exist in the second paragraph.
The Declaration’s express description of a “right” to “alter or abolish” an existing government could be claimed as one of the “other” rights under the 9th Amendment.
• Second, if we have a right to “abolish” an existing government and institute a new government based on whatever principles we believe are most likely result in our “Safety and Happiness,” then it appears that, as members of the people, we must have an even more fundamental right to our “Safety and Happiness” which could also be claimed under the 9th Amendment.
The Declaration recognizes our unalienable Right to the “pursuit of Happiness”. Does that “Happiness” mean we are all entitled to go to Disneyworld or Las Vegas for free?
No.
In the 1990s, I was reading an early dictionary from the 1800s and stumbled on a definition that included reference to the “pursuit of Happiness”. This definition explained that the unalienable Right to the “pursuit of Happiness” is the “Happiness” of eternal salvation. That definition has stuck in my mind for 20 years or more, but I do not recall which dictionary I was reading from (Bouviers? Blacks? Websters A.D. 1828?), nor do I recall what particular definition I was reading.
So, while I can’t produce evidence that the “pursuit of Happiness” was intended to refer to our “pursuit” of eternal salvation, that meaning is obvious. I.e., which would you rather have—which would make you “happier”: 1) a Ferrari, $ 1 million and a blond with a big set of bazooms; or 2) eternal salvation? The answer’s obvious.
But note that the Declaration does not declare our “unalienable Right” to “happiness”—it declares our right to the “pursuit of Happiness”. I.e., some of us may pursue that “Happiness” and find it; some may fail. The Declaration cannot and does not guarantee that you or I will actually find eternal salvation, but it does guarantee each of us the right to pursue that “Happiness” however each of us sees fit.
That means we each have the unalienable Right to freedom of religion. After all, how can anyone pursue his eternal salvation except by means of his faith? You get to pursue your “Happiness” (eternal salvation) any way you like. That pretty much opens the door to practicing virtually any religion that you choose.
Of course, your right pursue your “Happiness” by means of any religion does not entitle you to harm others. They have the same rights as you, and when your faith conflicts with mine, neither faith can impose itself on the other. We have to allow anyone else’s faith to be exercised freely, so long as that exercise does not impose itself upon or seek to deny the faith of someone else.
Thus, in conjunction with the 9th Amendment, the unalienable Right to the pursuit of Happiness opens a big, big door to claiming rights under your religion.
Again, you can’t claim a right under your faith to harm others of another faith. Their right to their particular style of the “pursuit of Happiness” is every bit as valid as your own. However—so long as you are peacefully exercising a right that can be traced to your religion—you might be able to ward off some government intervention.
For example, it wouldn’t be easy to argue that: 1) you have a God-given right to travel; and 2) therefore you don’t need a drivers license since it interferes with what might be your unalienable right to travel. I doubt that more than one man in ten who tried make such argument would succeed. But I also don’t doubt that one in ten might succeed in such argument.
• Third, note that the Declaration (A.D. 1776) uses the phrase, “But when a long train of abuses and usurpations”. That phrase seems nearly synonymous with the phrase “misconstruction or abuse” found thirteen years later in the Preamble to the Bill of Rights (A.D. 1789) with regard to the exercise of powers under the Constitution. This similarity could support an argument of a link between the fundamental purposes in both the Declaration and the Bill of Rights (including 2nd and 9th Amendments).
• Fourth, insofar as the Declaration implicitly guarantees we each have fundamental rights to “Safety and Happiness,” it’s apparent that my right to “Safety” should include my right to “keep and bear arms”. Of course, some “gun control nuts” would argue that their safety, perhaps even my safety, and our children’s safety, is enhanced by eliminating guns. But that argument can be defeated by evidence as obvious as the 2nd Amendment that proves the Founders never imagined or intended that American’s safety would be enhanced by eliminating guns. Clearly, the Founders believed that we would be immeasurably safer with guns than without.
• Fifth, the Declaration declares that whenever these “abuses and usurpations” of powers over the People are persistent and thus evidence of a “design [a conspiracy] to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government . . . .”
I.e., if we the People see evidence of a conspiracy within our own government to subject We the People to “despotism” (but, under the word game of law, not necessarily “fascism” or even “tyranny”) that evidence creates and/or justifies the exercise of our “right” to “throw off such government”. Thus, before we start barking about “tyranny” etc., we might do well to learn the express meaning of “despotism” and use that term to describe oppressive government.
Webster’s A.D. 1828 Dictionary defines “despotism” as:
“1. Absolute power; authority unlimited and uncontrolled by men, constitution or laws, and depending alone on the will of the prince; as the despotism of a Turkish sultan.
“2. An arbitrary government, as that of Turkey or Persia.”
Webster’s A.D. 1828 Dictionary defines “despot” as:
“An emperor, king or prince invested with absolute power, or ruling without any control from men, constitution or laws. Hence, in a general sense, a tyrant.”
I’m not going to explore the meaning of “despotism” except to say that it’s pretty much synonymous with “tyranny” (the word I’m inclined to use). The word “tyranny” also appears in the Declaration. However, insofar as we’re playing the word game called “law,” and we claim the right to “throw off” a government, we might tend to describe that government as a “despotism” rather than a tyranny.
When the Founders declared the right to “throw off such Government,” they weren’t talking about voting the tyrants (“despots”) out. They understood that tyrants only leave feet first or, at best, at the point of a bayonet. Thus, to “throw off” despots, we need “arms”—and the American Revolution perfectly demonstrates that point.
The ultimate right to resort to violence and arms to enforce our liberties by “throwing off” despotic government makes perfect sense because despots—by definition—don’t give a damn about the people’s opinions and therefore don’t give a damn about the people’s votes. Despots agree with Joseph Stalin that “it doesn’t matter who votes—it only matters who counts the votes.” Despots mean to “count” the vote to ensure that the “vote” always favors despotism.
Thus, if you had evidence that your government was “fixing” the elections and vote counts, you’d have evidence of the kind of despotism that we have a God-given, unalienable Right to “throw off”.
You can’t vote despots out of office. You either “suffer” the evils of despotism “while evils are sufferable,” or you take up “arms” to shoot (or at least intimidate) the bastards.
Insofar as the Declaration of Independence expressly declares that we the People have a right to “throw off” despotic government, the 9th Amendment guarantees us access to that right today.
Insofar as it’s virtually impossible to “throw off” a despotic government by peaceful means, the right to “throw off” such government necessarily implies the right to “keep and bear arms” for that purpose. The “right” to “throw off” despotic government is meaningless without the preliminary “right to keep and bear arms”.
It’s even arguable that the People should be allowed to keep “arms” that are at least comparable to the arms retained by a (potentially) tyrannical government. We can’t be expected to exercise our right to “throw off” tyrannical government with sling shots, bows and arrows and flintlocks, when the government is armed with full-automatic rifles, shotguns and drones. If the government has high-tech weapons, we should be at least entitled to “keep and bear” semi-automatic (assault) rifles and probably full-automatic weapons.
Gun control advocates would probably dismiss the idea that the people should be entitled to some sort of “parity” in arms with the federal government as crazy. A lot of people would agree with them. However, they’d be wrong. The original “militias” that were referenced by the 2nd Amendment were “armies” of each of the States of the Union. Those State militias had rifles, grenades, cannons, tanks, etc. In the 20th century some of those State militias even had their own “air force”. Thus, for over a century after the 2nd Amendment was ratified, it was recognized that the People of the States of the Union had a right to keep and bear arms that were far more potent than todays alleged “assault rifles”.
Remember, 2nd Amendment is not about protecting the federal government. The purpose of the 2nd Amendment is to protect the People of the States of the Union (and perhaps their State governments) against the “misconstruction or abuse” of constitutional powers by the federal Government.
• Sixth, and almost astonishingly, the Declaration not only declares that we have a “right” to “throw off” despotic government, we have even a “duty” to do so (“it is their right, it is their duty, to throw off such Government”). Insofar as we each have a duty to throw off tyrannical government, we can’t hope to perform that “duty” without the necessary equipment. Our “duty” to “throw off” despotic government presupposes not only a “right” to “keep and bear arms” but also a “duty” to keep and bear arms.
If I could successfully argue that I have a “right” to perform my “duty” to “throw off” any government that become “despotic,” that “right” would necessarily include my right to “keep and bear arms” needed to perform my “duty”.
• Seventh, the Declaration lists a number of rights that could be accessed by the 9th Amendment in support of the 2nd Amendment. This list isn’t merely of historical interest. I.e, those rights do not merely apply to the past—they expressly apply to the future.
Insofar as the Declaration declares, “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security,” we have both a right and duty keep and bear arms not merely to shield ourselves against tyranny committed by a current government administration, but to shield ourselves and our descendants against the possibility of tyranny committed by some future administration.
Thus, even if it could be argued that the Obama administration has no inclination to dictatorship or despotism, it cannot be argued that no future governmental administration will ever incline to tyranny. Therefore, I have a right to keep and bear arms today as part of my right and duty to throw off any possible future government that would become tyrannical. So long as the possibility of future despotism exists (and it will until the Christ returns) I have both the right and the duty to “keep and bear arms” for the purpose of shooting any member of a future tyrannical government.
And who would deny that argument? Will the government stand up and declare that the American people should never have the right to shoot any governmental officer or employee—even if the government itself has become tyrannical? I doubt that even Obama would dare to argue that the American people are obligated to by law to submit to tyranny.
5th paragraph of the “Declaration of Independence”:
“Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”
• First, consider the use of the word “sufferance” in the phrase “patient sufferance of these Colonies.”
In the third paragraph of the Declaration, the Founders declared the premise that “all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government . . . .”
Here, in paragraph 5 of the Declaration, the Founders sought to implicate the premise seen in paragraph 3 by arguing: 1) they had “suffered” the evils of tyrannical government for a long time (“patient sufferance”); but, 2) those evils were no longer “sufferable”; and therefore, 3) it had become arguably and naturally “necessary” to “alter” (“throw off”) their “former Systems of Government” (King George and the monarchy) and replace it with a new government more conducive to the People’s safety and happiness.
• Second, “To prove this [argument], let Facts be submitted to a candid world.” The Declaration goes on to list 29 paragraphs, each of which contains at least one “Fact” that is evidence of the “establishment of an absolute Tyranny over these States”.
I haven’t yet read through these 29 paragraphs to see whatever “Facts” have been alleged. But, insofar as any of those 29 paragraphs listed “Facts” that proved the existence of despotism/tyranny in A.D. 1776, those same “Facts”—if found to be committed by today’s government—would also constitute evidence that today’s government has also become despotic/tyrannical.
Conclusion
That’s as far as I’ll go today to explore the rights declared in the “Declaration of Independence”.
But I hope that each of you understands that the 9th Amendment (“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”) declares that such acknowledged “rights” (as found in the Declaration) are still accessible under our 9th Amendment.
Specifically, I want you to understand that many of the rights declared in the Declaration are, by way of the 9th Amendment, useful for understanding and supporting the 2nd Amendment.
More, a thorough reading of the Articles of Confederation (A.D. 1781) and the Northwest Ordinance (A.D. 1787) may also uncover similar statements of “rights” which could be claimed today under the 9th Amendment.
Finally, it’s at least probable that another thorough reading of the Bible could uncover more “rights” that might be claimed by Christians or Hebrews under the 9th Amendment—especially if the 9th Amendment was backed up the freedom of religion “rights” found in the 1st Amendment.
Thus, rights under the 2nd Amendment need not stand in isolation. They can be supported, reinforced, clarified and even amplified with the 9th Amendment and the “Declaration of Independence,” perhaps the Articles of Confederation, Northwest Ordinance, and perhaps even the 1st Amendment and Bible.
A sophisticated argument in favor of the “right to keep and bear arms” that was based not only on the 2nd Amendment but also on some or all of these additional authorities should be extremely difficult to defeat.
