Part XVIII: Shall Not Be Infringed
November 9, 2005
11:05 PM CST
I get quite a few letters like this one, so I might as well post my position on the matter. From Reader Lee M:
I am an active advocate of the Bill of Rights and of returning our government to its Constitutional roots. As such, I’d like to offer the following rebuttal to the limits you would impose upon 2nd Amendment absolutists:
1] A “right”, akin to breathing, requires neither affirmation nor acceptance in order to exist. It exists, and is most evident, even while being violated. That which can be negated or restricted by government action is a privilege, not a right.
2] The Framers of the Constitution were acutely aware of the dangers inherent in the acknowledgment of individual liberties vs. the consequences of facing-down a world super-power, when they drafted the Declaration of Independence, the Constitution, and the Bill of Rights.
3] Were it not for privately-owned “ships of the line”, equipped with the latest in artillery technology (also privately-owned), manned by sovereign individuals willing to risk “our lives, our fortunes and our sacred honor”, it is doubtful the American Revolution would have had any chance of success, whatsoever. No great leap of faith is required to suggest that an F16 fighter bomber is anything more than a “ship of the line” (note Tench Coxe’s “every terrible implement of the soldier"); or that the Framers were incapable of extrapolating from their weapons to today’s modern weaponry.
4] As far as Weapons of Mass Destruction (WMD) are concerned, our forefathers understood the ramifications of pirates demanding tribute by threatening to ground a plague ship in a populated harbor, or of armies seeing that their Indian enemies received blankets used by victims of disease (cholera or anthrax or plague). So again it’s no great leap to grasp that they understood the danger inherent in enumerating a right “to keep and bear” the tools of their own destruction. Also, one might want to check out Vin Suprinowicz’ explanation of in whose hands would WMDs be safer - the government’s or the sovereign individual’s.
5] True, rights are not suicide pacts. But the Founders were just a couple of battles, or one self-serving informer, away from the gallows. And it is unseemly to suggest that today’s abstract concepts of danger can focus the mind better than would our forefathers knowing that a superpower is inexorably working to see that you, personally, face the gallows. So give the founders a little more credit.
Either the Constitution is “the supreme law of the land” (as written) or we live at the whim of executive decree, legislative over-reach and/or judicial fiat.
Since the definition of “infringed” is the same today as it was in the 18th century when the Bill of Rights was ratified, exactly what part of “shall not be infringed” gives you pause?
I write this not to criticize, but to understand.
I’ve made this argument so many times, I think I’ll do it just this once more, and then add it to The Gun Thing essays, because it’s time it was nailed to a tree and forgotten. Let’s do it point by point (and forgive me if the arguments overlap occasionally, because that’s just the nature of the beast).
1] A “right”, akin to breathing, requires neither affirmation nor acceptance in order to exist. It exists, and is most evident, even while being violated. That which can be negated or restricted by government action is a privilege, not a right.
Not true, and this is one of the statements which absolutists want taken for granted, but which cannot be allowed to stand unchallenged.
Individual rights are always subject to infringement when the exercise thereof, taken to the extreme, may cause harm to the society at large. Not only that; even a cursory study of history and of human nature will show that an unfetted right will inevitably be abused by the individual, to the general detriment of the community. We are individuals, but we are also members of a society, and of a nation. When the collective welfare is threatened by an individual’s extreme, criminal or irresponsible exercise of a right, the People have every reason to circumscribe that right.
Example: Your First Amendment right to unfettered free speech does not extend to passing military secrets to an enemy state. That’s called “treason”, and the Founders were quite specific about that particular asterisk on the First Amendment. To argue otherwise is unreasonable.
Another example: Felons are denied their right to vote, and are likewise denied the right to be armed. This is because society has judged them unworthy by their actions to have those rights. (Incidentally, I happen to believe that non-violent felons should be allowed to keep firearms in their residence, because they have just as much right to self-defense as anyone else. I just don’t think they should be allowed to take them out in public. And, as a final comment, if a convicted non-violent felon abuses that trust and commits a crime with his “self-defense” weapon, the penalty should carry a mandatory death sentence, regardless of whether a life was taken or not.)
2] The Framers of the Constitution were acutely aware of the dangers inherent in the acknowledgment of individual liberties vs. the consequences of facing down a world super-power, when they drafted the Declaration of Independence, the Constitution, and the Bill of Rights.
Well, yes. Which is why they formed the Continental Army, despite their misgivings about “standing armies”. (They limited the army’s power, of course, by making it both contingent upon an enlistment period and subject to civilian control, and have done so ever since.)
Note, however, that the Constitution came after the Revolution, although its principles were surely part of the action. But let’s also remember that the Constitution’s adoption came after a long period of wrangling and compromise, and its adoption was only made possible by the Bill of Rights, which was the underlining and specification of the general principle.
Note too that the Founding Fathers’ misgivings about the army did not extend to sea power. (See below.)
3] Were it not for privately-owned “ships of the line”, equipped with the latest in artillery technology (also privately-owned), manned by sovereign individuals willing to risk “our lives, our fortunes and our sacred honor”, it is doubtful the American Revolution would have had any chance of success, whatsoever. No great leap of faith is required to suggest that an F16 fighter bomber is anything more than a “ship of the line” (note Tench Coxe’s “every terrible implement of the soldier"); or that the Framers were incapable of extrapolating from their weapons to today’s modern weaponry.
There are two responses to this, because it’s really two issues.
As far as the “privately-owned ships of the line” are concerned, it should be noted that as a Crown Colony, America had no navy of its own—colonial navies are a relatively-recent phenomenon—and had perforce to rely on privateers as their makeshift navy. Once the American federal government had been established, of course, such vessels were either stripped of their letters of marque, or else folded into the nascent United States Navy. Since that time, the United States has never relied on any kind of private mercenary force to project its power, except in non-combatant forms such as logistics (ie. the merchant marine or air transport), or where the Armed Forces were unable to support or execute a specific function, or where the government wished to support an operation sub rosa (the Flying Tigers, Air America, and so on).
The bigger issue is this one: Are citizens of the United States allowed to form private armies?
The answer, of course, is a resounding “no”, and has been such since the foundation of the Continental Congress. The right to “peaceable assembly” does not extend to the formation of a private force—the militia, by definition, is ultimately subject to government control. This gives rise to the next point.
A fully-equipped F-16 is very much like a privateer’s vessel, and I’m glad you made this point. Like the privateer, the F-16’s owner has to rely on an infrastructure to keep the weapon going—technicians, maintenance, operations, and the like.
Next question: Assuming that ownership of a fully-equipped F-16 were possible, and the owner had created the support infrastructure, to whom would those employees own allegiance? If the answer is “to the nation”, then the issue is moot: the government could then order the employees not to support the F-16 whenever it chose, and its use would become irrelevant. If the answer is “to the owner”, well, that then constitutes a “private army”, and no government in the world would tolerate its existence. The F-16, properly speaking, is therefore not an individual arm, but a weapon of the state.
Which is why the Tenche Coxe quote is so misleading (and never forget that Coxe was not a Founding Father, but a political economist who worked in Alexander Hamilton’s Treasury. Coxe was, of course, an anti-Federalist, and like many, was always fearful of federal power, which is a little ironic since Hamilton was the arch-Federalist of the day).
Nevertheless, I think it’s important to balance Coxe’s words with the reality of the situation. When he speaks of “every terrible implement of the soldier”, I am most certainly not going to suggest that he meant only musket, bayonets and flintlock pistols. Of course this translates into the modern day, where individuals should be “allowed” to own any infantryman’s weapon they choose—but with a couple of caveats, because here we go into a gray area.
Caveat 1: Explosive devices or their launchers (hand grenades, Claymore mines, RPGs etc.) are problematic, in that their misuse (either by accident or mischief) have some seriously deletorious effects on a community. The next question, of course, is: what constitutes “proper” use of such devices?
Caveat 2: By the same token, an extension of the above should be made for what I call “squad” weapons: crew-served machine guns, artillery, and so on. By no stretch of the imagination can these be called “individual” arms: they are the weapons of an army, and I’ve already talked about private armies.
In peacetime, the use of the above is of questionable value to anyone—and their potentially-disastrous effects on society at large constitutes a fair reason for their ownership to be treated with the utmost circumspection. In wartime, all bets are off, and their use becomes a moot issue.
More to the point, however, is that the end effect of a landmine or artillery shell is indiscriminate—everything caught in the explosion is destroyed or damaged—and I don’t see why those consequences should not be taken into consideration when it comes time to look at ownership.
Let me add, at this point, that my reservations do not extend to individual weapons which are high-powered or automatic. I think that anyone who chooses should be able to own a BAR, MP5 or Bren gun, for example, but I have little problem with the State applying just a little control as to who owns them. I’m talking of, for example, a criminal background check or mental stability check, simply because, as with the WMDs above, the potential harm to society of unfettered ownership of such weapons warrants at least a little circumspection.
4] As far as Weapons of Mass Destruction (WMD) are concerned, our forefathers understood the ramifications of pirates demanding tribute by threatening to ground a plague ship in a populated harbor, or of armies seeing that their Indian enemies received blankets used by victims of disease (cholera or anthrax or plague). So again it’s no great leap to grasp that they understood the danger inherent in enumerating a right “to keep and bear” the tools of their own destruction.
Let me be perfectly frank about this one. I make a huge distinction between the right of an individual to self-defense, to defense of their family and community, and defense of their nation; and to ownership of weapons of truly mass destruction.
So forget any thought that the idividual’s “right to bear arms” should include the right to own nuclear weapons, biological weapons or anything similar.
Here then, in terms of weapons ownership, is the spectrum.
Serious WMDs such as nukes or bioweapons: Forget about it. (I don’t really care what Vin Suprynowicz says, because he’s an absolutist.) This is not negotiable. In fact, support of this position makes me fell dismissive of anything said thereafter.
Artillery pieces, aircraft carriers, F-16s, RPGs, landmines: Forget about it. I can see why someone might support this position, but I’m not going to support it myself.
Full-auto belt-fed machine guns like the MG3 or Ma Deuce: Gray area. An individual may own one, but should undergo at least a background check and registration. I have little problem with individuals owning this kind of weapon and would own one myself, subject to the above restrictions (which I regard as burdensome but not unreasonable).
Full-auto submachine gun/assault rifle or large-caliber/small cannon pieces: No problem, subject to background check. No registration.
Any other individual arm, such as semi-auto rifles and pistols, revolvers, bolt-action “sniper” rifles, cowboy guns, hunting rifles, shotguns, flintlocks, whatever: Should be able to buy at Kmart, with no restriction whatsoever. Don’t even think of appying any nonsensical restrictions like magazine capacity or cosmetics to this category.
The problem with absolute rights is that if those rights are taken to extremes, society will eventually perish. This is no less true for any endeavor, because human nature being what it is, no society can continue to exist by relying purely on the goodwill of individuals.
That would be nice, but unfortunately it’s not realistic.
Just as we place restrictions on government, we need to place restrictions on individuals. The question is, at what point does a restriction become a denial of that right? I hope that, in terms of the Second Amendment anyway, I’ve answered that question satisfactorily.
