In his recent article for BloombergBusinessWeek, entitled “Gun Control and the Constitution: Should We Amend the Second Amendment?“, Paul M. Barrett discusses the forthcoming book from retired Supreme Court justice John Paul Stevens, in which he argues for amending the Constitution. Barrett explains that the most controversial proposal from Stevens’ book, entitled “Six Amendments: How and Why We Should Change the Constitution”, has to do with “changing the 2nd Amendment…to make it easier to regulate the sale and ownership of firearms.”
According to Barrett, Stevens says about the 2nd Amendment’s guarantee that “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”
Stevens favors amending the 2nd Amendment with the words “when serving in the militia”, so that it would henceforth appear as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.” He criticizes “emotional claims” put forth by gun-rights proponents that he says serve only to “distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands.”
The first thing that Stevens is missing here is that the NON-prevalence of guns in private hands is what causes those interested in carrying out this “slaughter” to think they can get away with it. There’s nothing more attractive to someone bent on slaughter than a “gun-free zone”…where they can rest assured that armed citizens will likely not be present to interfere with their murderous plans. For more on how a well-armed citizenry serves to prevent such attacks, see “More Guns, Less Crime” by John Lott.
For Barrett’s part, he unfortunately focuses on the simple politics of this issue, and completely misses how Stevens is so utterly wrong about the application and meaning of the 2nd Amendment. Stevens is viewing the amendment (and, by extension, likely the entire Bill of Rights) as rights granted to the people simply by virtue of being listed. He is completely missing that the sole PURPOSE of the entire Constitution is to limit government, not the people.
The Bill of Rights does not GRANT rights – nor does it even “protect” or “limit” them, as Stevens claims – but simply LISTS specific rights that the government cannot infringe upon. It was solely intended to prevent any incorrect interpretations by those who might seek to expand government control/power at the expense of individual liberty.
Indeed, the Bill of Rights does not ADD anything to the Constitution, and is therefore largely unnecessary (unless the purpose of the Constitution is being ignored, which, unfortunately, happens far too often). In fact, Alexander Hamilton argued in Federalist 84 against the inclusion of a Bill of Rights at all, as it was “not only unnecessary in the proposed Constitution, but would even be dangerous.”
Hamilton explained that a Bill of Rights “would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” In line with the very clearly explained purpose of the Constitution (in accordance with the fundamental truth of the Declaration of Independence, that the government is subordinate to the individual), this explanation from Hamilton makes it perfectly clear that the government is only ALLOWED to do those things that are specifically REQUIRED of it via the Constitution’s enumerated powers.
Hamilton explained this further with a specific example: “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” If a power is not specifically granted, then it is specifically prohibited by virtue of its omission.
What the Bill of Rights does is, as Hamilton said, to simply “declare that things shall not be done which there is no power to do”. Redundant and unnecessary, and, as Hamilton feared would happen, despite not “confer[ing] a regulating power”, it has now “furnish[ed], to men disposed to usurp, a plausible pretense for claiming that power.”
The 9th Amendment addressed Hamilton’s fear: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This SHOULD have taken care of any attempts by those “disposed to usurp” more power. But, alas, they never give up, and more often than not, they succeed in grabbing extra-constitutional power for government at the expense of individual liberty.
Also, Stevens is absolutely wrong about the right listed in the 2nd Amendment being “limited”. Firstly, it does not apply only to “keeping and bearing arms for military purposes”…yes, it does mention “A well regulated Militia, being necessary to the security of a free State”, but that is not limited to merely serving in the armed forces under government direction.
Indeed, Thomas Jefferson contradicted this notion entirely when he said “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” As did John Adams: “Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self-defense.”
We the people ARE the “well regulated Militia”, which is “necessary to the security of a free State”. The regulation of the militia need not come from government though…it will come about as a natural result of the organization of the people in a collective effort “to protect themselves against tyranny in government.”
Stevens is again completely incorrect when he says that the 2nd Amendment “did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.” The 2nd Amendment does not specify that ONLY the federal government is limited in its ability to infringe upon gun rights, but that the right itself is absolute. It very clearly states that “the right of the people to keep and bear Arms, shall not be infringed.” What this means is that this individual right is unassailable by ANYONE. No one – at ANY level of government – is allowed to interfere with anyone else’s right to possess or carry a gun.
Yes, the 10th Amendment does say that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” However, the 2nd Amendment prohibits EVERYONE from having the power to infringe upon an individual’s right to keep and bear arms — that includes not only the federal government, but also the states and local governments, as well as other individuals.
Barrett ends his column by saying that “Amending the Constitution, and that includes amending an amendment, is a political undertaking that has to reflect the will of ‘we the people.’ These days, an awful lot of those people, the vast majority of whom obey the law and pay their taxes, like their guns and intend to keep them.”
What Barrett misses here is that this goes beyond simply the will of the people, as even that is not a good enough reason to empower the government to trample a basic, precious right – one whose main reason for existing is so that the people can maintain the ability to protect themselves from government itself.
– written on 23 February 2014