Skip to comments.Massad Ayoob: Reflections on the Second Amendment
Posted on 08/25/2002 2:36:23 AM PDT by Joe Brower
Reflections on the Second Amendment
By Massad Ayoob
Backwoods Home Magazine, Issue #77
A reader named Molly e-mailed a note to the office of BHM asking what the editor thought of Attorney General Ashcrofts recent affirmation of the Second Amendment as an individual right rather than an assurance of a states right to organize a militia. She also asked specifically how I felt about it.
Well, Molly, I cant speak for Dave Duffy and John Silviera and the rest of the crew, though I strongly suspect that they were as delighted with it as I was. When I heard the news 'I would have done two cartwheels and a backflip', as the saying goes, if I wasnt too old and stiff.
As you might imagine, the reaction was not the same in the gun-banning industry. (Yes, I use the term 'industry' advisedly. It is unlikely that anyone but Handgun Control Incorporated, so bankrupt of public credibility that it recently re-named itself, would have paid Sarah Brady her hefty six-figure salary to go around giving boring speeches laced with long-discredited propaganda. Only the most greedy of plaintiffs lawyers would have brought the legally moronic liability actions against gun industries by the cities.) The anti-gunners screamed for the head of John Ashcroft, demanding everything from firing to disbarment, because he dared to undermine the work of the Clinton Administration that was intended to put the firearms industry out of business and begin the disarming of the citizenry in earnest.
Au contraire. What John Ashcroft did was what his predecessor Janet Reno lacked the legal acumen and/or judicial temperament and/or intellectual honesty to do: he correctly applied the Constitution and the Bill of Rights that are the foundational documents for the nations chief interpreter of law. For more than a decade, the overwhelming majority of studies of Second Amendment issues that emanated from competent, impartial sources had upheld the view that the Second Amendment is an individual right rather than a states right.
Consider the following
History: The disarming of the citizenry has always been the mark of the totalitarian government. From the asagai-wielding warriors of Shaka Zulu to the yeomen of England to the Minutemen of the fledgling United States to the citizen-soldiers of Switzerland, the armed citizen has always been a constant, indispensable ingredient to a free country.
Obvious legislative intent: When a law is interpreted later, by the public or by the highest appellate courts, one factor that must be considered is obvious legislative intent. That is, what would any reasonable, prudent, unprejudiced observer who came along later conclude was the intent of the lawmakers in making this particular thing the rule of the land?
Any approach to obvious legislative intent applied to the Second Amendment has to come down in favor of it being an individual right. If one reads the entire document, every single element in the Bill of Rights speaks to the rights of each individual citizen. This document is one of the most thoroughly planned and carefully crafted in the history of the collective human experience. Are we to assume that the Framers tossed in an element of states rights as an afterthought? Why, then, was it second on the list instead of last? Or should we assume that this braintrust of the most gifted, most eloquent, most insightful authorities of their time never noticed that state militias would come under states rights and not individual rights?
Such incongruity, such an over-reach of the imagination, simply boggles any logical and prudent mind. The obvious legislative intent is, well, obvious. Simply put, the greatest American intellects of the time knew that the citizen is the state, and knew also that the state exists for the citizen more than the citizen exists for the state.
We must never forget that every single patriot of the American Revolution was a citizen of a British colony before the excesses of the British government forced him to pick up his rifle and fight for independence. In the last analysis, it could be effectively argued that all the 'colonists' wanted were the same rights as an Englishman in Old Blighty. At the time, that included the right of the individual to bear arms. Remember that the oft-quoted Draconian gun laws of England were a phenomenon of the 20th century; in the time the Bill of Rights was drafted, no citizen was more free to own the weapons of the Kings soldiers than the citizen of England.
Look to the 'source documents': History shows us that those who wrote the Bill of Rights pored scrupulously over the constitutions of each of the original thirteen states. It was from these sources that the often-mentioned rights to possess arms were drawn by those who wrote the Amendments to the Constitution of the United States. A great many of them made it abundantly clear that the right of the citizen to protect himself and his family, individually, was at the core of the right to keep and bear arms. The ability of that citizen to become a citizen soldier and bear those arms in defense of his state was simply one more reason why the right to keep and bear arms served the common good of a free state.
Finally, there is the most logical answer, the short sound-bite answer that hits the hardest and is absolutely irrefutable. When someone with a non-existent to superficial understanding of constitutional law tells you that the Second Amendment speaks only to the National Guard (which did not even exist until long, long after the Bill of Rights went into effect), remind them of the following: At the time of the American Revolution, a 'National Guard' would have been Tories loyal to King George.
The price they had paid for their freedom -- in blood, in treasure, and in grief -- had to still weigh heavy in the hearts of those who framed the Bill of Rights. Can anyone seriously believe that they would put secondmost on their list of That Which Would Keep Us Free, a mechanism that would have given indigenous occupying forces to the next tyrannical enemy?
As one of the Patriots said of another matter, 'Forbid it, Almighty God!'
The bottom line is, there is simply no logical argument to be made for a states right to raise a militia being inserted into a manifesto of individual citizens rights.
Relationships to other individual rights: What is that oft-quoted phrase? Ah, yes: 'the right to life, liberty, and the pursuit of happiness.'
Without the wherewithal to defend life itself, it doesnt take a philosopher to figure out that liberty and the pursuit of happiness (and obviously life itself) can be taken away from the helpless by the empowered. The gun has historically been an equalizer. Today the buzzword is 'force multiplier.'
You are a black man in Michigan, with a howling mob of white racists outside who want to destroy your home and lynch you. Can you stop them with your bare hands? No. Can you stop them with a gun? Yes -- and, as the Michigan case showed early in the 20th Century, you will be acquitted by a jury of your peers.
You are a woman attacked by a gang of vicious young rapists in a public park. Can you stop them with your bare hands? No. In the latter half of the 20th Century in New York City, the victim of the infamous 'wilding' incident learned this the hard way, and remains physically brain-damaged from her ordeal in addition to the shattering emotional effect of the gang rape. Could this woman have protected herself if shed had the same wherewithal as the armed citizen in Michigan?
Well, lets just say her chances would have been a helluva lot better. Even when you dont have enough bullets to shoot every member of the murderous, rapacious mob, you certainly have enough to shoot the leaders, and natural selection being what it is, this has a remarkably persuasive effect on leaders of mobs.
In Stephen Kings book, Stand Alone, later made into a movie, a group of young boys are about to be savagely mauled by a gang of man-size teenage delinquents. As the leader of the criminal gang prepares to do extreme violence, one of the boys withdraws from his backpack his fathers .45 automatic, which the boy has taken for protection on the long wilderness trek that is the core of the book. The gang leader sneers and asks the youth if he thinks he can shoot every member of the gang.
The boy resolutely aims the pistol and gives a classic reply: 'No, Ace. Just you.'
It was one of that classic movie moments that did what cinema should do more often: 'Art imitates life.' Studies from the California Attorney Generals Office to the work of eminent criminologist Gary Kleck to the absolutely unassailable work of Professor John Lott show that when criminal predators close in on innocent victims, and the innocent victims draw guns, the criminals back off most of the time without blood being spilled.
It is a fundamental law of mammalian nature: predators do not routinely attack other creatures that have powerful fangs and claws of their own. They sometimes do so, but only out of absolute desperation, or in turf wars, or when in the mind-bending rut of the mating season. This means that if you dont deny food to the starving, dont try to sell drugs in the territory of the Bloods or the Crips, and dont hit on that pretty girl hanging on the arm of that big guy wearing Hells Angels colors, you have probably narrowed your assailant profile down to criminals seeking targets of opportunity. A criminal seeking a target of opportunity will historically back off from his assault when he realizes he has picked the wrong victim. If he doesnt back off, well, Darwins Law of Natural Selection will take its course once again. Ive come to call it, 'Cause of death: sudden and acute failure of the victim selection process.'
Lord Blackstone, the greatest of all our commentators on the Common Law, said that self-defense was the highest of all human rights. This was understood by the framers of the Colonial States constitutions. They made it very clear that the right of the individual to protect himself and his family from unlawful criminal assault -- in his home or in public, anytime, anyplace, anywhere -- was at the core of the individual citizens Right To Keep And Bear Arms.
A matter of logic: Bring it all together. John Ashcroft was right. That overwhelming aggregate of Constitutional Law scholars was right. George W. Bush, the man who appointed John Ashcroft Attorney General of the United States, was right. The Second Amendment guarantees an individual right, not a collective one.
The constitutions of each of the individual Thirteen Colonies, long before they United as States, made it overwhelmingly clear that the right to own guns was a citizens right, not a states right.
Working with these colonial constitutions as foundational documents, the Framers of the Bill of Rights obviously agreed. There is no other logical conclusion but that they found it a key right to each human component of a free society. Indeed, that they considered it so important that they made it second on their long list of imperative individual rights, second only to free speech.
There is no reason to believe that what may be the ultimate document of individual human rights somehow had a states rights clause thrown in. Not logically, not historically, not legally.
It stretches believability past the breaking point to believe that a foundational document of individual human rights would include a clause that would allow a tyrannical government that had taken over a free people to command a tyrannical reserve military force within the very breast of America.
So, let me complete this long answer to Mollys question. What I think of John Ashcrofts opinion, the official opinion of the Office of the Attorney General of the United States, that the Second Amendment is an individual right, is this:
Its a good opinion. Its the right opinion. Anyone who says otherwise insults your intelligence, and mine, and that of a very long history of thinking Americans that goes back all the way to the Framers of the Bill of Rights itself. And, indeed, back beyond that.
John Ashcrofts opinion affirms the 'obvious legislative intent' of those who wrote the Second Amendment. That obvious legislative intent was one that lies at the very core of what we call Justice: the protection of the innocent from evil.
And, as Daniel Webster said, 'Justice is the highest concern of Man on Earth.'
MY favorite reply to the silly line, "The second amendment is for the military," is:
"Do you think the founding fathers were so stupid that they thought they needed a law for soldiers to have weapons? If that were so, then it would say, 'The right of the military,' instead of, 'The right of the people.' "
That gets 'em every time..
Henry Bowman's right hand tightened around the walnut grip of the Solothurn S18-1000. The weapon had been a present from his Father, given to him on his fourteenth birthday in 1967. Cost $189.50 back in the sixties Henry thought irrelevantly. I thought that was a steal. Dad's friends thought it was astronomical. Wonder what they'd think now. --UC
My favorite book. I sell Unintended Consequences it at gun shows - and reread it all the time. It's also consistently one of the three top sellers in Alamance Independent - and about 5,000th of the more than a million titles Amazon.com sells; many of Amazon.com's sales of it go to U.S. Army bases with elite units!
Indeed, that they considered it [individuals bearing arms] so important that they made it second on their long list of imperative individual rights, second only to free speech.
The position of the Second Amendment in the list is nearly entirely random, and Massad Ayoob is creating significance in this where none exists. Indeed, it was originally the fourth amendment proposed to the states, as any facsimile of the engrossed proposed amendments will tell you.
"Article the first" provided a formula for more precisely assigning numbers of House representatives to sizes of populations. It was probably outdated by the time of the first national census in 1790, with the growth in population even then picking up. In any event, it was never ratified.
"Article the second" prohibited any law to raise Congressional pay from taking effect until after the next House election, presumably so the voters could deliver an effective verdict. It was finally ratified more than 200 years later, in the early 1990s, and became the 29th Amendment. (And it had been already diluted to irrelevance by a law that made raises for Congressmen and Senators automatic, being tied to an economic index for inflation, and only allowing for them to be rescinded.)
"Article the third" was what became known as the First Amendment, with its being adopted (along with the other nine, seriatim) by the States in 1791.
It's only the Ninth, or eleventh proposed, Amendment (the rule of construction, not all rights are enumerated) and the Tenth, or twelfth proposed (powers not delegated to Congress are held by the states or the people) that have any sense of logical position in the list, as they apply to all of the foregoing proposals, as well as the entire original Constitution.
In a sense, they conclude the original effort at constitution-making -- and they are properly the most logically important, as they are set up as master rules for interpreting all the rest. Just as the initial Amendments are superior in any legitimate authority to the original Constitution. This is because almost all of the original ratifying conventions made passage of such a "bill of rights" their clear and explicit condition for agreeing to the original document, from 1787 to 1789.
The Congress knew that enough state ratifications were accreting over the centuries to finally make this take effect, when it reached the current mark of three-fourths, or 38 states ... so they passed the we-don't-need-no-steenking-vote law, to make the Amendment moot in advance. Thus violating some of the Constitution (in spirit, certainly) even before it became part of the Constitution, a new record in statism.
I thought that we only had 26 Amendments (ERA was supposed to be 27). What are 27-29?
The 27th Amendment was ratified in June 1992. The tally reached three-fourths of the states for the first time in 203 years, at 38 states, the current number required.
Unfortunately, Congress had already passed, in 1989, the law that made it moot: Automatic increases would take effect each year, tied to a particular inflation index, with no need for a new law to be passed, but a majority of both Houses could vote to rescind the automatic raise in any given year. (As may happen this year, to make them look good in light of corporate scandals, etc.)
The framers and ratifiers assumed that measures to increase pay would actually be put into separate bills. Just as they assumed that each bill would deal with ONE subject. Silly framers!
(This latter point was actually required by the Confederate States constitution. They'd seen seventy years of suitcase-bill mischief in Congress by that point.)