Curse You, Bill of Rights!

 Posted on January 03, 2013 in Uncategorized

Might we be better off today if the Bill of Rights had never been written?

If your reaction to that begins, "but the Bill of Rights gives us..." I'm halfway to my point. The Bill of Rights doesn't give us any rights. It simply confirms a few of the rights that the founders thought God had given us.

But somehow the notion became popular that the Bill of Rights gave us rights.

In a spirited discussion of scary-looking semiautomatic rifles with removable magazines ("assault rifles," which aren't technically assault rifles, but which we've allowed gunphobes to dub, so what the hell), my friend Frank pointed me to this (pre-Heller) article about the Second Amendment, in which the author says, among other things:

The Standard Model finds, squirreled away in the Second Amendment, not only a private right to own guns for any purpose but a public right to oppose with arms the government of the United States. It grounds this claim in the right of insurrection, which clearly does exist whenever tyranny exists. Yet the right to overthrow government is not given by government.

Of course the right to overthrow government is not given by government. No right is given by government. If government gives it, government can take it away, and it's not a right. (Even the Supreme Court is guilty of this thinking: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms." District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (Scalia, J.).)

The nature of government is to increase its own power. The founders, students of history, knew this. They were not acting under the delusive belief that every American government ever would be a lawful one, honoring the Constitution. They didn't trust governments-even the government they were creating-and they wanted the people to be able to keep their government honest, through the press, in court, and if need be by force of arms.

A common response to the argument that the right to keep and bear arms was intended to allow us to keep government honest is that a man with a rifle has no chance against the might of the U.S. government. Maybe the anti-gun folks who say that are right.

The rifle is a weapon. Let there be no mistake about that. It is a tool of power, and thus dependent completely upon the moral stature of its user. It is equally useful in securing meat for the table, destroying group enemies on the battlefield, and resisting tyranny. In fact, it is the only means of resisting tyranny, since a citizenry armed with rifles simply cannot be tyrannized.

-Jeff Cooper, The Art of the Rifle

Maybe Cooper is wrong that a citizenry armed with rifles cannot be tyrannized. But even if Cooper is wrong and a tyrannical government might summon the will to crush the resistance of a citizenry armed with rifles, that's going to take a great deal more governmental will than crushing the resistance of an unarmed citizenry.

What's this about a tyrannical government? An impossible proposition, you think? James Madison thought so too:

That the people and the States should for a sufficient period of time elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period, uniformly and systematically preserve some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggeration of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

James Madison, The Federalist No. 46.

But Madison, an educated man, would have known his Blackstone, and would have agreed with that jurist's conventional wisdom that

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.

Not only does our government by violence confiscate people's estates without accusation of trial through the mechanism of forfeiture, but it also bereaves people of life without accusation or trial, claiming that its legal rationale for doing so is secret. Where is the alarm of tyranny throughout the whole kingdom? Blackstone was wrong: the grossest acts of despotism raise no alarm. Madison was wrong: the people silently and patiently behold the gathering storm, and continue to supply the materials. (What did Madison miss? He didn't anticipate the science of fear as compulsion.)

Madison described what would happen in that impossibility (which, now that the government claims the authority to kill without review or even argument, seems inevitable):

A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.

None of this would be of any good unless the citizenry were armed. If, while the Constitution is in effect, the people are disarmed, then when the Constitution is nullified they will still be disarmed, and all the more easily tyrannized.

The Second Amendment did not give us the right to bear arms so that we could overthrow the Constitution. It preserved, for a time, our unalienable right to bear arms so that if (and that "if" is closer to "when" since the founders had no reason to think the Constitution would last as long as it has) the Constitution were overthrown the people could resist.

Still, that's a good thing, right?

Maybe, maybe not. It gave us words to argue about-what does well-regulated mean? what's a militia? is a well-regulated militia a precondition to the right?

If we didn't have those words to argue about, perhaps we would all recognize that our rights aren't "conferred" by the Constitution, but are natural. If we weren't squabbling about what the words mean, we might look elsewhere to determine the wisdom of maintaining Cooper's "citizenry armed with rifles."

Where might we look, were we trying to decide whether it would be wise for the citizenry to be armed with rifles? We might look here:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security...

It is not only our right but also our duty, when the Constitution is overthrown and the government becomes destructive of its purpose of securing our unalienable rights, to throw off such government.

Compared to some of my friends and readers, I am a cheery optimist. I think we may not see outright tyranny in our lifetime (but then I wonder what would constitute outright tyranny, if publicly announced extrajudicial governmental murders do not...maybe publicly announced extrajudicial murders by an unelected president). Our children may not see it in their lifetime. But when the Constitution is finally dead and beyond resuscitation, I want my children or their children's children to have the tools they need to do their duty.