By Charles Thompson III
This is intended as a direct rebuttal to Jim Barrett’s article “Confessions of a 2A Non-Absolutist.” First off, I appreciate you taking the time to so clearly articulate your position. Clear, concise, and intelligible points make my job a lot easier because I don’t have to struggle to understand what you are really trying to say. That being said, you as wrong as wrong can be. There is a fatal flaw in your logic in that you completely misunderstand the concepts of Liberty and Equality. Consider this excerpt from the Declaration of Independence that you referenced in your article . . .
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.
While this phrase does not appear directly in the U.S. Constitution, that phrase is the spirit of the guiding principles that shaped the Founding Fathers’ vision for this Country. Liberty, in this context, pertains to the interaction between the government and the people, enforced by the accountability of a duly elected government to the electorate, existing without the permission of the governing body.
In its purest sense as a right, Liberty is the right to property, with property being defined as both physical and real property and the person of oneself. It encompasses the total ownership of self (physically, mentally, philosophically, and spiritually) and all property that one has accumulated without violating the selfsame Liberty of another. Contrary to what the Progressive message would have you believe, the state cannot guarantee that your right to Liberty will not be abridged by your fellow man in the practical sense, nor should it in the ideological sense. People dwell so much on the Life, Liberty and the pursuit of Happiness part that they often overlook the very next part, which states in the most succinct of terms the purpose and limit of government.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
In my opinion, that is the most powerful part of the Declaration of Independence. Life, Liberty and the pursuit of Happiness may be the spirit of the U.S. Constitution, but this line is the cornerstone of the purpose and role of our government. Notice that governments are “among” men, not “over” them, and only to the extent that the people as a whole allow (accountability to the electorate).
Accordingly, Government’s role is clearly to draw a line in the sand and to prosecute an offender should they cross that line. It is not within its power, both statutorily and practically, to try to prevent people from crossing that line, only to provide recourse within the Law on the behalf of the offended when that line is actually crossed. Liberty, as a right, is only guaranteed in the interaction between the government and the citizen. In all other things, the government can only act on behalf of the citizen after their Liberty has been infringed.
To illustrate, the FDA can set standards by which food producers must abide that, if followed, provide a product in good faith to the consumer that will not harm them. This level of governance would be comparable to making it illegal to commit murder. If followed, the would-be-victim will not be harmed. However, if they violate these standards, then the government can prosecute on the behalf of the people. In both instances it is not the government’s responsibility to ensure that people are not harmed, because that is impossible, but rather to provide recourse when someone is harmed or violated. That is the context that all laws should be framed by.
A law prohibiting someone from discharging a firearm in a public setting provides recourse should someone be harmed by the actual violation of the law. Prohibiting the ownership of a machine gun contradicts that tenet because no one’s Liberty was infringed by the breaking of that law. The possibility of committing a crime cannot in and of itself be a crime. Otherwise, we find ourselves on the very slippery slope of attempting to regulate “pre-crime.” These victimless crimes have drained our judicial system of all of its effectiveness and rendered it inept at performing the most basic functions of justice and conflict resolution. In keeping with this doctrine, regulation of firearms can only be administered on the actionable use of the firearm that impacts the person or property of another entity. Any other restriction is an infringement and a clear violation of the scope of government to be among the people.
Taking this a step further, restricting ownership by certain persons (i.e. felons or mentally ill) clearly falls into the realm of pre-crime regulation and therefore falls outside the scope of a proper government. We in the gun community opine so often that it is the person that commits the crime, not the gun. Phrased another way, it is the person that is the threat, not the gun. Accordingly, if we restrict ownership of guns, we have not accomplished anything because the person, i.e. the threat, is still free.
If a person is too dangerous to have access to a firearm (which they must have demonstrated as such through action and not based on subjective determinations), then they are too dangerous to be released back into society. Once a criminal has paid his debt, all of his rights should be restored. If he cannot be trusted with his rights, then he cannot be trusted and he has not paid his debt in full and therefore should remain in prison. The punishment must fit the crime comes to mind though. You stated:
There are people walking around who simply should not be allowed to own a gun.
While that is certain, it is far too subjective to act upon. Who gets to determine who is too dangerous and who isn’t? You? Me? You say you agree that “pre-crime” regulations have no place, yet you immediately turn around and argue that training should be a pre-requisite for ownership and that certain people shouldn’t own guns. Isn’t that putting the cart before the horse? I wholeheartedly agree that the more training the better. However, making it a crime to possess and bear arms without training falls squarely into the pre-crime arena. Again, it is not within the government’s practical and expressed power to prevent bad things from happening.
This segues nicely into the second major flaw in your logic which is your application of the concept of equality, or, to state another way, the basis for resolution of differences. The purpose of the courts is to resolve conflict between two parties when one or the other has allegedly violated the Liberty of another. All citizens should have equal protection and power before the law. From your post:
As I said earlier, RF’s opinion on the specific meaning of 2A is no more and no less valid than Michael Bloomberg’s opinion. What matters is the SCOTUS’s opinion.
Practically, what SCOTUS thinks matters because it is enforced by the rule of law, which, ironically, is enforced by the point of a gun. However, on a philosophical level, what makes the opinion of a Supreme Court justice any more valid than my own? Or Sylvester Stalone’s? Or Peyton Manning’s? Or Bradley Manning’s?
You make the case that SCOTUS’s opinion in DC v. Heller leaves room for regulation, and rightly so. However, that doesn’t align with the Constitution or the concept of Liberty. Are you just going to throw your hands up and say “Oh Well” if SCOTUS reinstituted slavery? Certainly not! How can citizens have equal protection under the law if SCOTUS decries that they can be regulated separately and unequally between the several states? However, your most troubling statement encompassed the subjective interpretation of the public good and its application.
Society has the authority to take your liberty or even your life if you act against the common good. Since the right to keep and bear arms stems from the fundamental right to life (the right to protect one’s life), it seems hard to dispute the fact that if the society has the right to abridge life and liberty, then it certainly can abridge the right to keep and bear arms.
The common good? Who is the final authority on what the common good is or isn’t? Countless times throughout history, men speaking out on the tenets of Liberty have been persecuted and oppressed by their governments, all in the name of the common good. Society and the state do not have the authority to abridge life and liberty for the common good under a Social Contract.
In its simplest terms, the Social Contract should be stated as “If you don’t hurt us, we won’t hurt you.” There is no cessation of life and liberty to guarantee that nobody will get hurt, rather there is the promise that there will an appropriate response of justice should one party violate the rights of another party. I agree that there has to be a way to resolve our differences . However, it is not for SCOTUS to decide what the power of government is to be or the rubric by which they can resolve conflict. SCOTUS does not have the power to write the rules that it will in-turn adhere to. It is for the people to decide and the state (including SCOTUS) is limited to the expressed powers that the people have defined.
…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
The people have reaffirmed on countless occasions that the Constitution is the final authority on the power of government among the rights of the people. Therein, as a bastion of protection from the tyranny of an oppressive government, is our guarantee as citizens that:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Until such time that people determine to redesign the fundamentals of the greatest social contract ever devised, personified in words of the Constitution of the United States of America, that document remains the final authority on the resolution of our differences.
I could expound further, but let this be summation of my argument. Shall not be infringed. Period.