Where Does the Right to Keep and Bear Arms Really Come From?
Most gun rights advocates, even the ones who know that government is not the creator of rights, would say that the Second Amendment is where the right to keep and bear arms comes from. And you would think that we could, for the sake of argument, and because we know that most of them believe that rights are endowed by the Creator and all men are created equal, etc., etc., just drop the issue that they are technically incorrect about the idea that our legal right come from the Second Amendment, because we are all on the same side (on this issue). Right?
Wrong! No, not wrong that we are on the same side. Of course we are. Even if we have our own disagreements amongst ourselves, some of them glaring if not offensive, the enemy of our enemy, on a given issue, is certainly our friend, on that issue. So, what I mean by wrong has to do with whether or not we should drop the issue just because they are our allies. We should not. Why? Because those that look only, and perhaps even primarily, to the Second Amendment when defending their legal (as opposed to just natural) right to keep and bear arms, are incorrect about an important issue. They do not understand the purpose of the Second Amendment let alone some of the other amendments.
This comes from, or is influenced by, a flawed understanding of the Constitution (which itself is a very flawed document, but again, for the sake of argument, let us assume it is as good as we are ever going to get in our lifetimes) as a whole. And this flawed understanding, when employed by progressives and other political deviants, has caused some of the greatest tyrannies of our age. And if employed by those of us who value liberty, it may serve to protect certain rights for the time being, but it gives the progressives and political deviants a distinct advantage. They will have already won the legal argument and it will be that our right to keep and bear arms rests simply on the whims of whichever legal positivists are in power at the moment.
What is this fundamentally important understanding of the document that these people just don’t seem to have, even the ones who know that there is a legitimate right to self-defense inherent in our very nature? It is that the Constitution gives no authority to government, whatsoever, where not specifically enumerated. It is that the Ninth and Tenth Amendments are much more than mere truisms. Even some folks who might be sympathetic to or adamant about states’ rights and nullification might fall into the wrong sort of thinking when the question of individual (as opposed to states’ rights) arises.
And how does this all apply to the right to keep and bear arms? Well, it is actually the Ninth and Tenth Amendments that guarantee this right from a legal standpoint, not the Second. Failure to see this is the result of having bought into the progressive myth of the Constitution, that irrespective of what our legitimate rights as human beings are, they must still be enumerated either in the Constitution or some legislation or regulation supposedly made in pursuance to it (or at the very least, a twisted interpretation of that document). The progressives are correct that the Constitution requires enumeration. But they are wrong when they think it is rights that must be enumerated when it is really authority.
When the Ninth Amendment says [emphasis mine], “The enumeration in the Constitution,of certain rights, shall not be construed to deny or disparage others retained by the people,” and when the Tenth Amendment says, “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,” even though, they appear, chronologically after the Second Amendment, they are already sufficient to guarantee the right to keep and bear arms. In other words, even if the Second Amendment were to erased from the Constitution tomorrow, there would still be a legal (as opposed to just natural) right to keep and bear arms.
So why, you might reasonably enquire, is the Second Amendment worded the way it is? Why does it say “the right of the people to keep and bear arms shall not be infringed,” if the right to keep and bear arms is already guaranteed (albeit chronologically later)? The answer is that the main point of the Second Amendment is not to do with the individual right to keep and bear arms, but rather whether that right is infringed by the establishment of a well regulated militia. The words, “the right of the people to keep and bear arms shall not be infringed” have more to do with how a well regulated militia, once established, shall not be construed as to deny rights, than it does with an explicit, elsewhere unmentioned, but recognized right.
Of course, none of this is to disparage the use of the Second Amendment when used to defend the individual right to keep and bear arms, as even some of the Founders did in their writings, but only that the interpretation that says the Second Amendment is necessary for this right to be legal, when the main point was simply to make it known that a well regulated militia (established by the states in their constitutions but essentially co-opted by the United States Constitution in Article One, Section Eight) did not justify or require the regulation or confiscation of arms (which were already presumed to exist outside of service in the militia) is a much weaker argument (though it still causes fear and loathing in the hearts and minds of the gun grabbers) than that which also incorporates the Ninth, and the Tenth (and for that matter, the Fourth).
So, were it not for the co-opting of the militia by Congress, there would have been no need for the Second Amendment, as the right was already presumed first under the Articles of Confederation and state constitutions as well as the prevailing philosophies of the day, but secondly by the Ninth and Tenth Amendments, without which, the Constitution would not have been made the law of the land for any state because it would not have been ratified by states with Anti-Federalist leanings, which already recognized the rights to keep and bear arms, both through specific enumeration and a general fear of other nations (including other states, not an irrational fear considering the Civil War) and of tyrants.
What is the implication of this when debating progressives, be they hacks, pundits, or lawmakers? Well, it pulls the rug right out from under them when they argue that the Second Amendment is about the militia. Why? Because it allows for them to be correct in a general sense, it is indeed about the militia; but even more wrong on the specific issue of the individual right to keep and bear arms. I am not saying it is a good idea to repeal the Second Amendment. But I am saying that the legal argument still isn’t lost even were such a thing to happen. Though, I admit, were it to happen under most conceivable circumstances, it might already be to late to salvage any other part of the Constitution.
But legal arguments aren’t what truly matter when we get right down to it. Whether a manmade document recognizes or disparages a legitimate right, that right still exists. It is still defendable. Through (defensive) violence if necessary. That is what is meant by the Declaration of Independence when it makes mention of “inalienable rights.” But the great thing about the law is that, even where flawed, it can be used as a persuasive argument, in many cases precluding the need for a coercive one. Remember, law is not coercion; the state is. Opposition to the state is not opposition to law and order.
Some good resources on the Tenth Amendment:
Some interesting reading on the Second Amendment: