Alexander's Column

'The Right of the People to Keep and Bear Arms'

By Mark Alexander · Nov. 16, 2007

“The Constitution shall never be construed … to prevent the people of the United States who are peaceable citizens from keeping their own arms.” –Samuel Adams

There is yet another ideological contest brewing in our nation’s capitol, this one between two distinctively different groups in the federal judiciary: constitutional constructionists, who render decisions based on the “original intent” of our nation’s founding document, and judicial despots, who endorse the dangerously errant notion of a “Living Constitution.”

This is no trivial contest, however, and the outcome will have significant consequences across the nation.

The subject of this dispute is Washington, DC’s “Firearms Control Regulations Act of 1975,” which prohibits residents from owning handguns, ostensibly to deter so-called “gun violence.”

Of course, suggesting that violence is a “gun problem” ignores the real problem – that of socio-pathology and the culture which nurtures it. (See the Congressional Testimony of Darrell Scott, father of Rachel Scott, one of the children murdered at Columbine High School in 1999.)

In 1960 the frequency of violent crime in the District was 554/100,000 residents, and the murder rate was 10/100,000. In 2006, the frequency of violent crime in the District was 1,512/100,000 residents, and the murder rate was 29/100,000. That is a 200 percent increase, and according to the latest data from Washington Metro Police, violent crime is up 12 percent thus far this year.

Fact is, firearm restrictions on law-abiding citizens in Washington, and other urban centers, have created more victims while protecting offenders. There is nothing new about this correlation. As Thomas Jefferson noted in his Commonplace Book (quoting Cesare Beccaria), “Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes. … Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

Simply put, violent predators prefer victims who have no means of self defense.

Most pro and con arguments about firearms are constructed around the crime debate, including excellent research by John Lott, whose book More Guns, Less Crime, clearly establishes that restrictive gun policies lead to higher crime rates.

The arguments from both sides in the current case in Washington are also constructed around the crime issue. However, the Second Amendment debate is not about crime, but about the rule of law – constitutional law. Fortunately, the appellate court for DC is making this distinction.

In March of this year, the U.S. District Court of Appeals for the District of Columbia struck down that federal jurisdiction’s restrictions on gun ownership, finding that the District is violating the Second Amendment’s prohibition on government infringement of “the right of the people to keep and bear arms.” The case has been appealed to the Supreme Court, and should the High Court accept the case, its ruling would be the first substantial decision on the scope of the Second Amendment since 1939.

At issue: Does the Second Amendment prohibit the government from infringing on the individual rights of citizens to keep and bear arms, or does it restrict the central government from infringing on the rights of the several states to maintain well-armed militias?

The intent of the Second Amendment, however, was abundantly clear to our Founders.

Indeed, in the most authoritative explication of our Constitution, The Federalist Papers, its principal author, James Madison, wrote in No. 46, “The advantage of being armed, which the Americans possess over the people of almost every other nation … forms a barrier against the enterprises of ambition, more insurmountable than any….”

Alexander Hamilton was equally unambiguous on the importance of arms to a republic, writing in Federalist No. 28, “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense….”

Justice Joseph Story, appointed to the Supreme Court by James Madison, wrote, “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

In other words, the right of the people to bear arms is the most essential of the rights enumerated in our Constitution, because it ensures the preservation of all other rights.

Accordingly, the appellate court, in a 2-1 decision, ruled, “The Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government. … The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty.”

Additionally, the majority opinion notes, “The activities [the amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”

The real contest if the Supreme Court takes this case will be between activist judges, those who amend the Constitution by judicial diktat rather than its clearly prescribed method stipulated in Article V, and constructionist judges, those who properly render legal interpretation based on the Constitution’s “original intent.”

As Hamilton wrote in Federalist No. 81, “[T]here is not a syllable in the [Constitution] under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution….” In other words, nothing in the Constitution gives judges the right to declare the Constitution means anything beyond the scope of its plain language.

However, activist judges, including those among generations of High Court justices, have historically construed the Second Amendment through a pinhole, while viewing the First Amendment through a wide-angle lens.

For example, though the First Amendment plainly says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” judicial activists interpret this plain language to mean a public school coach can’t offer a simple prayer before a game.

Equally absurd, they argue that the First Amendment’s “freedom of speech” clause means burning the American flag, exploiting women for “adult entertainment,” or using taxpayer dollars to fund works of “art” such as a crucifix immersed in a glass of human waste.

If these same judicial despots misconstrued the Second Amendment as broadly as they do the first, Americans would have nukes to defend themselves from noisy neighbors.

The appeals case regarding the constitutionality of DC’s Firearms Control Regulations Act of 1975 is not about crime prevention, or whether the District is subject to prohibitions in the Bill of Rights. It is about the essence of our Constitution’s most important assurance that all Americans have the right to defend themselves against both predatory criminals and tyrannical governments. It is about the need for the High Court to reaffirm this right and stop the incremental encroachment of said right by infringements like that in the District, or more egregious encroachments like those found within the Feinstein-Schumer gun-control act.

Of self-government’s “important principles,” Thomas Jefferson wrote, “It is [the peoples'] right and duty to be at all times armed.” Indeed, the right of the people to keep and bear arms should not be infringed.