At the time the Constitution and the later Bill of Rights were written, the idea of natural law was pretty common. The basic gist of natural law is that these are the things you are free to do if there is no government around to try and tell you what you can and cannot do. These are things that, in and of themselves, do no cause harm to others for no reason.
One of these basic rights is the right to self-defense.
The Second Amendment’s right to keep and bear arms is derived from the implication that if you have a right to defend yourself then you have the right to access the means of defending yourself.
The right to “bear arms,” however one might interpret that phrase, is guaranteed by the Second Amendment to the U.S. Constitution and is not “God-given,” even if one were to impute some degree of divine inspiration to the Constitution’s writing. But there is a natural law right to individual and collective self-defense, something that has been recognized in many if not all societies since time immemorial.
That natural law right is the background of the Second Amendment right, even as these are conceptually distinct rights.
Before the 20th century, the validity of the natural law basis for the common law right to self-defense would not have been contested. As jurisprudence moved away from any recognition of the natural law, however, for the right to be legally cognizable, it had to be shoehorned into some existing positive law, such as the Constitution — hence the need for labored mis-readings of the text of the Second Amendment.
Yeah, using that whole “shall not be infringed” is a real bummer.
Let’s go back to the start of that quoted section, however. The author here doesn’t dispute the right to self defense, nor does he seem to think it’s limited to either an individual right or a collective right, but extends to both. So far, no problem. I tend to think any individual right naturally extends to groups of individuals exercising that same right, so I’m not going to argue the point.
But he argues that the right to keep and bear arms and the right to self defense are distinctly separate.
This is the academic version of a lawyer’s trick; an attempt to ask what the definition of “is” is. The right to self-defense cannot exist in a vacuum. If it exists distinctly from the right to arm yourself then it is basically nothing more than a right to stand and be mowed down by opponent. The only difference between that and your garden variety massacre is that you sort of feel better that you sort of made a stand that was doomed from the start.
The right to keep and bear arms is intimately tied to the right of self-defense because the two really don’t exist without one another. You have no real, meaningful right to defend yourself if you don’t have the means to do so.
Yet because one may be able to defend themselves without a gun at times, the author apparently thinks the right to keep and bear arms is completely different.
Further, because of the idea of self-defense being collective, it seems the author understands that creating militias or armies to resist oppression is a natural right. So far, so good. Yet he also thinks those groups should be able to be effectively disarmed prior to their formation, thus making the likelihood of success as miniscule as possible.
Then again, I’m not sure the author has a grasp on natural rights in and of themselves since he goes on to write:
As law professor Nelson Lund has pointed out, there also existed an “ancient common law prohibition against ‘terrifying the good people of the land’ by going about with dangerous and unusual weapons.” But good luck getting the U.S. Supreme Court to find a way to recognize that in the current positivist climate.
And ancient common law prohibition, however, dealt with people using arms to terrify the good people of the land intentionally. The mere presence of a sword or a spear wasn’t the problem, but when people pointed them at people in order to scare them.
Which, coincidentally, is illegal here and now. I cannot take my firearms out and try to scare people without cause. For example, if I pull my handgun to stop a robbery, that’s fine. If I do it just to scare someone who is annoying, it’s not.
What isn’t covered under this “ancient” prohibition, though, is when someone is just scared of weapons in general. The presence of a gun might trigger that fear in some, but unless that fear is the result of an intentional act, that’s not on the person holding the gun.
The heart of the matter is that some are trying to redefine natural law to mean, well, whatever it is that they want it to mean. In this case, they want to pretend that natural law and the Second Amendment have, at most, a tenuous relationship with one another and that gun control is perfectly acceptable under the idea of natural law.
This despite how it was understood at the time of the nation’s founding.
Maybe it’s just me, but I’m not interested in seeing academic games played with my rights, nor of being told that I can maintain my right to self-defense, both as a person and as a group, but should not have the best means for defending myself and my nation.
Our nation deserves better than that.