Saturday, December 23, 2017

The Uniqueness of the Second Amendment

Sam Bocetta has an article today over at the American Thinker that asks the question  Is the Second Amendment Unique? Of course, the answer to that question s a qualified "yes," but for those who want to find out more, read on.

Before going on, however, allow me to talk a bit about those who see the 2nd Amendment as the palladium of rights versus those who believe the 2nd Amendment has outgrown its usefulness.  The framers of the Constitution were scholars of history, of the Bible, and of the law, and had a wide understanding of the human condition.  One thing they believed was that the nature of man has never changed since he first walked on the earth.  Jonah Goldberg has often cited this quality with the phrase "human nature has no history."  They also subscribed to the Augustinian belief that man is a fallen creature; in other words that man is sinful in everything he does.  These twin beliefs, along with the writings of John Locke and others who had built up Western philosophy and religious thought eventually resulted in a Constitution of limited government in which the various parts of government were seen to compete with each other for power, leaving the individual largely alone.  Little noticed, but equally important is that man's nature can not change.  If one truly looks at his own motives for doing anything, he will see that nothing he does, even the good things, is done without personal gain in there somewhere.  Today we call such people "conservative."  For them, the 2nd Amendment will always be relevant.

But what if you don't particularly believe in God as understood by the Western tradition, what then?  You might come to believe that man can change if you incentivize him enough.  You might believe that you can create the conditions for heaven on earth, where the lamb lies down lion, where swords are beaten into plowshares, and where man doesn't learn war any more.  In other words, Utopia (meaning nowhere),  The belief that they can change human nature causes people with this belief to do all sorts of tragic and comic things to effectuate a change that never happens.  If only they elect the "right" person, or inscribe the right magic incantation into law, people will become enlightened and see the error of their ways.  They always are disappointed.  Such people, who have worked under various banners: Marxists, Communists, Fascists, Socialists, Progressives, Liberals, Leftists and probably some I have missed, tend to speak a different language, and if you are sensitive to it, you begin to hear the lie in everything.  For instance, whereas conservatives talk about the "people" meaning individuals with different lives, different situations, and different things they where find success in life, the Collectivists talk about the "masses."  The difference is that "masses" implies a collection of identical widgets in a grand organic machine, each of which has the same ambitions, desires, and goals, and each can be treated with a one size fits all solution.  For these people, the belief in the perfectibility of man means that the 2nd Amendment has now, or will eventually, outlive its purpose.

So, is the Second Amendment unique? 

Given the context in which the constitution was written -- that of a new country keen to free itself from the clutches of an overbearing English tyranny -- it is strange that the Second Amendment is actually based on English law. Specifically, the English Bill of Rights of 1689 codified what was regarded as a natural right to self-defense. This bill essentially limited the power of the English king to disarm his subjects, after Charles II had tried to disarm Protestants, whom he viewed as a threat to his power.
Interestingly, the same debate that rumbles on today about the importance of a “well-regulated militia” dates back to this time. In District of Columbia v. Heller (2008), the question of whether English Bill of Rights created a new right, or merely codified an existing one, was tackled. The Supreme Court found that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia," and therefore predated the bill.
In any case, by the time the Second Amendment was passed in 1791, the understanding of the earlier bill had developed. Before the U.S. became independent, the American colonies had an approach to firearms regulation that had been inherited from English Common Law. By 18th-century England, for example, armed travel had been limited to a few well-defined occasions such as assisting justices of the peace and constables. Members of the upper classes also had a limited exception to travel with arms. What we would now consider standard concealed carry was even more restricted back then, and the city of London banned public carry of handguns entirely.
In short, the Second Amendment developed from English common law, and is therefore not unique in a historical context. However, the fact that the amendment appears in a constitution, and can therefore not be watered down by successive legislation, means that it has slowly become unique as the laws it was based on were themselves changed.
The Constitution of the United States of America was unique in its day, and remains unique even now. We are losing our rights not because the Constitution has changed, but because the courts have illegally and lawlessly "reinterpreted" it to say things it does not say. Worse, our politicians today see themselves as a uniparty of elites who basically agree with the courts. They do not trust us. And if they do not trust us, one wonders if we should trust them? Our Second Amendment is unique and precious. The elites would have taken over long ago except for the deterrent it provides. We must not let it be watered down by progressively more restrictive interpretations. To do so is a mistake we only get to make once.

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