Nowadays it’s hard to explain to some people that “rights,”
as that term was understood by the Founding Fathers, are not granted by
governments. They exist prior to government, and governments have no legitimate
jurisdiction to take them away, except in cases where it is a necessary
response to misbehavior, or where it is necessary to sustain the community.
Thus, liberty may be restrained to protect the public against aggressive
behavior, and taxes can be levied to sustain the government operations to which
the people have given express or tacit consent.
But rights were in no way considered to have been created by
the Bill of Rights. Rather they were placed in the Constitution as a reminder
to future federal legislators that there are lines that may not be crossed.
Let us use as our example the Second Amendment, which recent
tragedy has brought to the forefront of the national consciousness:
“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.” [1]
Notice that the amendment doesn’t say that the people shall
have the right to keep and bear arms. It says that “the right of the people to keep and bear Arms, shall not be
infringed.” (Emphasis mine.) The amendment is referring to a pre-existing
right. It is not creating a right, but protecting one. But what is the right to keep and bear arms?
In his Commentaries on
the Laws of England, first published between 1765 and 1769, Sir William Blackstone
wrote about what he called “the absolute rights of individuals” by which he
meant those rights “which are so in their primary and strictest sense; such as
would belong to their persons merely in a state of nature, and which every man
is entitled to enjoy whether out of society or in it.” [2]
Now by the time of the enactment of the Constitution, Blackstone had become
recognized as the principal expositor of the common law of England, which the
United States has inherited in all but one state, and which is specifically
mentioned in the Seventh Amendment. [3]
Blackstone broke down the absolute rights as personal
security (including life), liberty, and property. The Constitution reflects
this breakdown of rights in the Fifth and Fourteenth Amendments, protecting the
“life, liberty, or property” of persons against predation. [4] [5] After discussing
and breaking down these absolute rights, Blackstone went on to say,
“But in vain would these rights be declared, ascertained,
and protected by the dead letter of the laws, if the constitution had provided
no other method to secure their actual enjoyment. It has therefore established
certain other auxiliary subordinate rights of the subject, which serve
principally as barriers to protect and maintain inviolate the three great and
primary rights, of personal security, personal liberty, and private property.”
He listed five such auxiliary rights, and the fifth is
pertinent to this discussion:
“The fifth and last auxiliary right of the subject, that I
shall at present mention, is that of having arms for their defense, suitable to
their condition and degree, and such as are allowed by law. Which is…indeed a
public allowance, under due restrictions, of the natural right of resistance
and self-preservation, when the sanctions of society and laws are found
insufficient to restrain the violence of oppression.”
In a word, Blackstone considered it a right to have arms for
purposes of self-defense. This right was specifically mentioned in the English
Bill of Rights of 1689 (though it was there restricted to Protestants), one
hundred two years prior to the ratification of the American Bill of Rights. [6] And this is
the right that was codified in the Second Amendment (though, of course, in the
American version, the right wasn’t restricted to Protestants). The framers of
the Second Amendment did not think that they were creating a right to keep and
bear arms, but they referred to “the” right to keep and bear arms, meaning a
right they deemed to exist prior to the enactment of the Constitution.
While this would certainly protect the possession of limited
capacity handguns and shotguns for home defense, there is nothing that would
keep the government from prohibiting the possession of large capacity,
semiautomatic rifles, which are not necessary for self-defense, and have found
their chief civilian application in school shootings.
It might be argued that the Second Amendment specifically
mentions the “militia,” and, therefore, protects the right to own and possess
the standard issue military rifle. But this wouldn’t protect possession of an
AR-15, which is a semiautomatic rifle, so much as it would protect ownership
and possession of the selective-fire M-16, which is the actual military rifle.
There are few voices around calling for the legal possession by civilians of a
rifle capable of fully automatic fire.
Moreover, while the Supreme Court’s 2008 decision in District
of Columbia v. Heller acknowledged
that it is likely that the Framers of the Second Amendment intended the
preservation of the state militias that existed at the time (but have since
disappeared in their original form), the Court also pointed out that the
prefatory clause regarding the militia did not limit or expand the substance of
the right. [7]
At the time of the ratification of the Second Amendment, military and civilian
firearms would have been substantially similar, which is obviously not the case
today. So it would have been reasonable to state the maintenance of state
militias as the basis for ensuring the preservation of the right to bear arms.
Things have changed
since then, and there is no longer a question of requiring men of a certain age
to enroll in the militia, and to keep a musket, complete with periodic musters.
But the actual right, the right mentioned in the operative clause of the Second
Amendment, the clause that protects the right to keep and bear arms, remains
unchanged. And that is the right to possess weapons for self-defense; a
function for which an AR-15, or any other rifle capable of receiving a
high-capacity magazine, is entirely unnecessary.
So there is nothing
in the Second Amendment that prohibits the government to ban the civilian
ownership and possession of so-called “assault weapons.” That’s good news,
because these weapons present a serious public danger, particularly, as it turns
out, to the young.