Second Amendment Follies, Part 5: “Pre-existing Rights”


As we have seen in the previous installments, there is nothing in the Second Amendment that explicitly guarantees the right of an individual citizen to own firearms. But while arguing to the contrary, gunsters also hedge their bets by claiming that the amendment was not really meant to grant such a right but to reaffirm it; that, since many people owned guns in Revolutionary times, they obviously had a right to do so, and therefore such a right is still in effect today.  It was and is, so they say, a “pre-existing” or “innate” right. Many times they will even refer to it as a “God-given” right, as if that celebrated stone tablet had had a flip side on which was engraved, “Thou shalt be armed to the teeth with weapons to be invented millennia hence”.

There are really two separate but related issues here: tradition as precedent, and the presumed right of ownership in general.

The tradition of tradition

By “tradition as precedent”, we mean the conviction that just because something has always been done or was done in the past, that makes it acceptable, preferable or even mandatory.  This tenet is the backbone of conservatism and even neoconservatism. And it’s absurd on the face of it. As Tevye so famously discovers in Fiddler on the Roof, there are times when faith in tradition severely butts its head against harsh reality.

Surely anyone can readily tick off a list of activities that most people consider undesirable, yet have a very long tradition: murder, theft, rape, child marriage, racism, slavery, violent conquest, genocide and greed, to name just a few. Not only have all such actions been committed on an individual basis for countless ages, but most have been officially sanctioned by societies and governments at various times and in various places.  Indeed, it’s hard not to draw the conclusion that tradition, far from being ample justification for continuance of an action, is more likely to be an indication that an action should be curbed.

There is an old saying to the effect that your right to swing your fist ends where my nose begins. And quite often, one particular action that could be regarded as a right (or at least as permissible) under one set of circumstances could be justly prohibited in a different social context. If you only rode your motorcycle on deserted roads, it well might be that you would have a right to ride as fast as you wanted, without a helmet.  But if there is a chance that other motorists will be using that road, then it is incumbent upon you to consider the lifelong impact upon their lives that your unhelmeted, dumbassed death might occasion.

If you live in a cabin on an isolated mountaintop, then you might have every right to burn your trash and take target practice in your yard. If you live in the heart of Los Angeles, that’s another matter altogether. So even if we assume that Americans in the Eighteenth Century had a right to own guns, that wouldn’t mean that the same is true in today’s radically different world.

Reason and the evidence of history indicate that if people followed what is sometimes called The Golden Rule, we’d all be much happier and better off. But they don’t, and won’t. Which is why we have laws.

Of course, the existence of laws and governments results in an occasional clash between legal rights and what we perceive as innate (“God-given”) rights. Homosexuality, for instance, has very frequently and universally been the target of repressive regulation. And we’d normally assume that a family has a right to have as many children as it wishes. But the government of China, fearing catastrophic overpopulation, decided that there should be no more than one child per family (in most cases), which seems to be a violation of said right.

On the other hand, one could argue that such an innate right does not really exist in circumstances under which large families would pose a burden to society (bear in mind that “society” is just another name for “other people”).  Furthermore, it’s at least understandable if not justifiable that a couple in any country should be prohibited from having more children if they have been horribly abusive to the ones they already have.

In any case, whether it’s a matter of innate rights or legal rights, mere tradition alone is clearly not an adequate justification for any activity.

Nine-tenths of the law

But what about the right to own property in general? Surely in a free society you have a right to own your house, your land, your automobile, and — why not — your shooting implements, without any authorization from the government. Don’t you?

Actually, the same principle applies. Let’s not forget that for the vast majority of human history, there was a presumed innate right to own other human beings. It was not until fairly recently in our evolution that we collectively began to realize that slavery was not merely a swing of the fist, but a punch to the nose of human decency. And few people would maintain that a citizen has a right to own a nuclear warhead. Guns are designed for essentially the same purpose on a smaller scale.

It’s true that for much of America’s history there was a presumed right to own firearms — just as there was a presumed right to own slaves. But presumed right is not the same as innate or “God-given” right. Things were a bit different in the good old days. Guns were deemed essential for survival; many people depended on hunting for food, and faced the threat of hostile natives. Neither is the case now — just as it is no longer the case that forced labor is deemed necessary for agricultural production, or that people of African descent are regarded as less than human.

Most Americans no more have a necessity for guns than they do for horses. Of course, one might argue that nonetheless there is also an innate right to own horses. Even so, there is nothing in the Constitution to prohibit the government from banning such ownership under the right circumstances. Individuals, for instance, could be lawfully barred from owning horses if they were found to be cruel to animals. And there might be a lawful nationwide ban on equine ownership if horses became an endangered species, or were suddenly found to be a threat to the “general welfare” — carriers, for example, of a deadly plague. Firearms are carries of a deadly plague.

American society has totally rethought the presumed right to own slaves; it’s time to rethink the presumed right to own guns as well.

Summing up

But aren’t there indeed basic, innate human rights that cannot be justly compromised by any legislation? Well, sure. The Founders of the Republic summarized them very nicely: “life, liberty and the pursuit of happiness”. That may sound like a short list, but it actually covers a great deal of territory. It includes, for instance, such basics as food, clothing, shelter and medicine. But do guns fall in that category? Perhaps for a limited number of individuals in a limited range of circumstances. But to declare that there is a “God-given” right for all citizens to be armed is a very big stretch indeed — particularly when the evidence indicates that guns do considerably more harm than good.

You certainly have an innate right to defend yourself from harm.  So how, you may ask, do you defend yourself without a gun?  We just as easily could turn the question around and ask how can you even consider guns a viable element of self-defense when they are statistically so ineffective and even, evidently, downright counterproductive. (As a person who once was mugged at gunpoint, I say with confidence that one reason I am alive today is that I wasn’t armed.) But the short answer is, you use your head instead of your trigger finger. It’s hard to be more specific than that, because techniques and strategies will vary by the individual. But in any case, it’s naive and foolhardy to assume that a right to self-defense means you should be armed. And it’s ill-informed to believe you have an innate right to be.

In short, the right that Americans now enjoy (if that is an appropriate word) to own firearms does not come from the Constitution. It does not come from God or any synonym thereof. It does not come from tradition or reason. It does not arise from a need. It proceeds solely from the fiat of “conservative” justices.



    478 F. 3d 370, affirmed.
    Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting, (stated:)
    “The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals.”

    It seems the “liberal” justices also acknowledged that an individual right exists within the constitution.

    • (From Wikipedia) Justice John Paul Stevens stated that the court’s judgment was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”.[52] Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which was present in the Declarations of Rights of Pennsylvania and Vermont.[52]

  2. (From the same Wikipedia) The (Stevens) dissent concludes, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons…. I could not possibly conclude that the Framers made such a choice.”

    Justice Stevens in his dissent did not imply nor state that there was not an individual right to use firearms for hunting or personal defense only as stated above his belief that elected officials could regulate civilian uses of weapons. I remind the reader that the Preamble to the Constitution states “We the people” not We the elected officials.

    • He also did not state or imply that the Second Amendment enshrines a citizen’s absolute right to own arms. The first part of the Wikipedia paragraph you quote states: The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.

  3. POP, thank you for your blog. As I read about the Second Amendment and study the gun control issue, you have presented one side of that debate. Your arguments have caused me as a casual reader to question many of your assertions, thus forcing me to do further research in English history, Governmental philosophy, American Revolutionary history, The Articles of Confederation, individual states constitutional history, the Second Constitutional Convention, the Federalist Papers, the ratification of the Constitution debates, etc. (I do not discount the possibility that you also may have done so,)

    Rather than debate each point of your “one-sided” blog, I will address your question about “are guns a right?” The right to “Life, Liberty, and the pursuit of happiness” implies, as you agree, the right to defend yourself if those rights are violated. That may include using your head, or a fist, a club, a gun or a 911 call to someone who has a gun. But while I wait for redress of my grievance, do you have a right to take away my means of defense? Plato in “The Republic” stated regarding origin and nature of justice that the worst of all injustice was to suffer without the power of retaliation. Sir William Blackstone describes the right to bear arms as being “the primary preservation and defence” and self-defense as being “the primary law of nature (which cannot be) taken away by the Law of society,… the natural right of resistance and self preservation, when the sanctions of society are found insufficient to restrain the violence of oppression. John Locke stated: One may kill an aggressor where there is insufficient time to appeal to the Law, for the Law cannot restore life to my dead carcass.

    Times have changed since the Constitution was written, but I find that part of genius of it is that it prevents the current whims of debate to change the basics of freedom.

    You and I agree that the death of innocent people is abhorrent. But I too am an innocent person, so how can I help save others while not becoming a victim myself? That is the balance that I seek.

    • I don’t believe there would be a point in adding anything to what I’ve already said. Self-defense is a right. Gun ownership is not, at least not as a rule. (As I’ve indicated, it’s conceivable to make a case for such a right under certain specific conditions.) At least it is not an innate right, nor is it specifically authorized by the Constitution. There also is nothing in the Constitution to prohibit courts or legislative bodies from establishing such a (legal) right. As has happened.

    • Pardon my ramblings, if your “WOW,” is directed at me? I have often tried to post when I am very fatigued and cannot think as clearly as I should, so suffice it to say that I am for the ownership of guns by individuals, but (not) for supplying any individual with unlimited, powerful, or unnecessary types of self protection.

      If the government claims to protects our rights to life, liberty, and the pursuit of happiness, then that very mission inherently includes the government’s right to protect the public via prohibiting powerful killing machines that are far too easily available to people who clearly should not have them! That requires a national database, and a thorough system of background checks that can effectively regulate how guns are purchased and/or used by the public.

      To me its obvious that each of us has a right to self defense and the use of weapons that provide us with reasonable forms of protection—we just should not be able to legally and easily obtain AR-15s and other weapons which happen to be the preferred weapons of mass shooters—obviously because ot their easy use, and also because of the ease with which dangerous people may acquire them. But, just as importantly, the government has the right to routinely pass legislation aimed at protecting citizens and innocent bystanders from unelicited and uneeded forms violence!

      It’s not all or nothing! It’s a matter or recognizing all the ways in which government regulations can often. and legitimately, protect us!

  4. First of all, do you really think that the following list you compiled, really represents an analogy that also applies to the gun industry?

    “Surely anyone can readily tick off a list of activities that most people consider undesirable, yet have a very long tradition: murder, theft, rape, child marriage, racism, slavery, violent conquest, genocide and greed, to name just a few. Not only have all such actions been committed on an individual basis for countless ages, but most have been officially sanctioned by societies and governments at various times and in various places. Indeed, it’s hard not to draw the conclusion that tradition, far from being ample justification for continuance of an action, is more likely to be an indication that an action should be curbed.”

    And, are you suggesting that the right to life, liberty and happiness, is not applicable to those who own guns, by reason of pointing out other human needs that are more significant and more obvious than the right to self protection?

    “But aren’t there indeed basic, innate human rights that cannot be justly compromised by any legislation? Well, sure. The Founders of the Republic summarized them very nicely: “life, liberty and the pursuit of happiness”. That may sound like a short list, but it actually covers a great deal of territory. It includes, for instance, such basics as food, clothing, shelter and medicine. But do guns fall in that category? Perhaps for a limited number of individuals in a limited range of circumstances”

    Consider that the pursuit of life liberty and happiness, may not be as accessible to some of us when confronted by a gunman intent on killing us or another. So in that sense, if a gun helps protect anyone’s life, it also makes it possible for living people to continue seeking life, liberty, and happiness.

    I also think your analogy unravels when pointing out, that some human rights are more important and and thus more important to protect. Why should the fact that guns may not help save the day as frequently as food, water, clothes and shelter that, mean that they are worthy of being denied to the masses? I may also contradict that argument by pointing out the mandatory requirement to use seat belts in automobiles, or the prohibition on buying fireworks in some states, since they are examples of many laws and prohibitions which apply to dangerous and/or low risk objects of destruction. How foolish would it be, to prohibit mandatory seat belts based on the observation that, while tens of thousands of people die in traffic accidents each year, most of us are not going to die in head on collisions, or by sticking accelerator pedals? Sure life and food may be more basic, but does that mean we should deny our basic human right to self-defense?

    You’re right that gun ownership is not a God given right, and shouldn’t be perceived that way, since both are often used unsafely, and are the prefered choice among those who possess efficient weapons of mass murderers–I agree! That’s why I think that our guns need to be regulated, not denied entirely! And even though today’s weapons make the muskets used by early American citizens look like a bunch of pop guns and water pistols, there is still a basic right to self protection that is understood by law, to be equally as important as the basic rights you mentioned, even though human beings are usually the ones who decide what rights ought to apply for. However, that does not mean we should let our neighbors and ourselves obtain AR-15 with relative ease.

    I know that the second amendment may not be intended to sanctify everyone’s right to be armed to the teeth, and may have originally been intended to allow us to own weapons that can be easily turned on our comrades. But the courts decisions to recognize our rights to self protection as implicit permission to use and own guns, need not be a precursor of neighborhood Rambo’s sneaking around in the dark in order to exact their revenge with the use of machine guns, bazookas and hand grenades for instance. We just need to regulate guns as well as we regulate the ownership of of cars while setting off cherry bombs whenever they damn well please. granted. However, you seem to desire a world in which no one should own guns at all. The statistics reveal that self-justified gun nuts do obtain them too easily, but what is the alternative–deliberate laws which deny the foolish use of guns by too many people–when the truth is really that private weapons may save many of us from creepy characters who care even less for the letter of the law than we do/

    It should be about obtaining the basics, like, life liberty and the pursuit of happiness. But we’re in a world full of repression and intellectual indulgences–so let’s make a path to citizenship more easy! After all, the poor huddled masses, which included our own parents and grandparents, came here to experience hope, yet the ignorance and animosity among elected officials in our country represents a shallowness which is ultimately guaranteed to fail!

  5. People who believe that the Second Amendment somehow relates to the concept of self-defence need to understand the state of the law at the time the US Constitution was adopted. Actually, even up until recent times when things like “castle doctrine” and “stand your ground” became doctrine.

    First off, self-defence in common law is a mitigation, not a right. It can reduce the charge to manslaughter or assault depending on the circumstances.

    “THE defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lenghs of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.”

    Blackstone’s Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

    English common law doctrine held a “duty to retreat” that meant that you were obligated to retreat in the face of an attack. The one exception was enunciated in a 1604 court case involving an intrusion of agents of the king into a man’s private dwelling. These are the origins of the Castle Doctrine, which says that you do not have the duty to retreat when you’re in your home because “a man’s home is his castle.” This doctrine originated as an exemption to the duty to retreat, but in the United States it turned into a very expansive set of notions about who is allowed to fight back lethally against whom.

    Additionally, any force used for self-defence must be that reasonable necessary to stop the threat, with reasonableness being something to be decided by the finder or fact (jury or judge). Any force which goes beyond that reasonably necessary to stop the threat makes the person who is claiming self-defence the aggressor.

    Hence it can be an excuse for the act, up to pardoning murder, but that is providing that the person claiming this defence has not stepped beyond what force is reasonably necessary.

  6. I don’t understand the point you are trying to make: Because self-defense has legal parameters, self-defense was not a consideration in the writing of the Second Amendment?

    • I don’t understand the question. But you seem to be suggesting that a right to self-defense means a right to own guns. Even if that were the case, it has nothing to do with the Second Amendment.

    • Yes, show me the exact words “self-defence” in the US constitution.

      If you read the drafts of the Second Amendment (other than something like the Pennsylvania dissent), the discussion centres on militia v. professional/standing army with rare mentions of personal defence. First off, the use of deadly force was a LAST RESORT which could only be used when all other options had been eliminated. Not to mention, that self-defence in common law is a justification defence rather than an excuse.

      “The common law defence of self-defence applies where the defendant uses necessary, reasonable and proportionate force to defend themselves or another from imminent attack. It is a complete defence to all non-sexual offences involving the unlawful use of force (anything from battery to murder). Because the defence may result in a complete acquittal, the courts have interpreted the defence in a restrictive way so as to avoid acquitting too easily. For example, the courts will not usually acquit the defendant just because he thought the force used was reasonable – whether or not the force used was reasonable will be objectively assessed by the finder of fact (judge or jury) and not simply according to what the defendant thought at the time.”

      A read of the primary source material shows the real issue was Article I, Section 8, clause 16 of the US Constitution which gives Congress the power to arm the militia. To quote a Patrick Henry scholar:

      “I am firmly convinced that the Second Amendment is concerned with the state’s power to control its own militia as a civilian alternative to a professional standing army. In raising the issue in the Virginia Convention Patrick Henry several times pointed to Art. I, Section 8, Clause 16, as an example of the potentially threatening effect of dual state and congressional jurisdiction over the militia and the possibly dangerous union of the purse and sword vested in Congress.”

      • Another point to the anachronistic nature of Second Amendment revisionism. The Second Amendment was written at a time when firearms were handmade and not produced by modern machinery. So, think in terms of how much modern, handmade firearms cost, which can be anywhere in the THOUSANDS of dollar range.

        More from the above Patrick henry article:

        “This is not, I repeat NOT, part of Patrick Henry’s legacy. Clearly speaking of the problem of militia organization, what he actually said is, “The great object is that every man [of the militia] be armed.–But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance….””

      • Reader please note the parenthetical words [of the militia] were editorially added and are not a part of Patrick Henry’s quote. It correctly reads: “The great object is that every man be armed… Every one who is able may have a gun.”

        The quote goes on to ask; “When this power is given up to Congress without limitation, how will your militia be armed?

        This quote is taken from a discussion on allowing the government to arm the militia, and the fear that the government would underfund the militia thus defeating the ability of the people to have an effective militia to defend them against an oppressive Federal government.

      • OK, Tell me what Artcle III, Section iii is doing in the constitution if the point of the Second Amendment is to have an effective militia to defend against an “oppressive Federal government”? Also, why is the militia tasked with “suppress Insurrections” if the point is to be able to overthrow the government? Especially since the US CONGRESS is the body that can do that! (ArtI.S8.C15.1 Power to Call Forth the Militia)

        We can really have fun with constitutional interpretation if we include the “domestic violence clause” (Article IV, Section 4) for a couple of reasons. First off, the trend is to use popular meanings of terms such as “bear arms”. In this case “domestic violence” means something drastically different from what the founders intended, which is a bunch of people deciding to overthrow the government.

        Sorry, but trying to say that the Second Amendment has nothing to do with making sure what is now the National Guard is well-equipped only shows a serious ignorance of history and constitutional meaning. An actual read of the text of the constitution totally blows the concept of “defend them against an oppressive Federal government” out of the water.

        It’s been neglected, but Presser v. Illinois, 116 U.S. 252 (more) 6 S. Ct. 580, 29 L. Ed. 615, 1886 U.S. LEXIS 1760, (1886) should be required reading for anyone claiming to know anything about the Second Amendment.

        Otherwise, one makes ignorant comments like “the ability of the people to have an effective militia to defend them against an oppressive Federal government.”

        The founders could have called it a day if that was their intent, which is a comment that most US citizens don’t understand, but should. It explains why your statment is very, very, very wrong.

      • Note to reader: What POP does is called Eisegesis.
        “Eisegesis is the process of interpreting text in such a way as to introduce one’s own presuppositions, agendas or biases. It is commonly referred to as reading into the text. It is often done to “prove” a pre-held point of concern, and to provide confirmation bias corresponding with the pre-held interpretation and any agendas supported by it, whereas, Exegesis means that one allows the text to speak for itself.”

        POP also has a tendency to attack the author by calling them “ignorant of history”. This is called “Ad hominem (which) means “against the man,” and this type of fallacy is sometimes called name calling or the personal attack fallacy. This type of fallacy occurs when someone attacks the person instead of attacking his or her argument.”

        I encourage the reader to read Patrick Henry, other ratification discussions and draw their own conclusion.

      • What “someone” is doing is called projection: i.e., accusing others of exactly what you are guilty of. It’s covered in my article called “Propaganda Prop # 9: Deflection”. (This article also covers ad hominem, which is definitely not simply noting that someone is “ignorant of history”. Ad hominem is an attack on irrelevant aspects of one’s person because you don’t like the positions he or she presents. Astoundingly, “someone” got this definition right — apparently just quoting some source — and yet still provided a false example that misses the mark by a mile.) The gun culture’s entire stance on the Second Amendment (and indeed the right-wing stance on just about anything) can be boiled down to this: “I really, really want to believe X, so that means it must be unquestionable, divinely ordained Truth; and by god that’s what I’m going to believe, no matter what evidence I see to the contrary.” That’s reflected in the fact that a majority of Republicans believe that the 2020 election was “stolen”. And that the U.S. is a “Christian nation”. And that they have a constitutional right to own guns. All not only despite zero evidence, but despite an abundance of evidence to the contrary.

      • That is my point, you really, really want to believe and that is what you believe, regardless of the evidence. I realize that I will not and cannot change your ingrained opinions.
        Yes, I got it right. You even admit in the above that you attack one’s person because you don’t like the position he or she represents. Again, I will let the reader decide who is doing any “deflecting”.

      • I admitted no such thing, of course. And that’s really enough strikes against you. I’ve given you more than adequate opportunity to say something relevant and significant. But you just keep wasting everyone’s time and crying out for attention. So you’re done here.

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