There is an ongoing debate between two gun rights advocates, Kevin from The Smallest Minority and David from The War on Guns.
In essence, David is an “absolutist”, who insists that since the Constitution clearly states we have an unfettered right to keep and bear arms, any celebration of new laws that loosen previous restrictions by gun rights advocates is actually a further abdication of those rights because we are further acknowledging and in a sense endorsing the idea that the government has the authority to infringe those rights in the first place. At one point he likens gun licensing to paying the local thug for the right to drive your own car. In essence, he believes that to even join the discussion is to concede that the other side has a point; or to carry the analogy, to negotiate your driving with the thug is to agree he has the right to stop you from driving in the first place. (I hope that succinct description accurately describes his stance.)
Kevin, on the other hand, points to the progression of gun laws in the U.S. in the past 20 or so years. In a nutshell: “So… We should be unhappy that Nebraska just went from a ‘no concealed-carry anywhere’ law to a ‘concealed-carry most places’ law? This is a step backwards?”
The bulk of the original debate is here: http://waronguns.blogspot.com/… (and in comments) with more here: http://smallestminority.blogspot.com/….
In a very real sense this is one of those “in the real world” vs. “in theory” arguments.
Theory: The Constitution says we have unrestricted gun rights, and therefore we should all be able to carry a weapon anywhere we want without restriction.
Reality: The Constitution says we have unrestricted gun rights, but there are many cases wherein if we do carry a weapon they will come for us and lock us in a literal cage.
I agree with the theory. It follows the almost lost idea that our government is beholden to the people; sadly most people these days seem to believe that the government is properly the more powerful of the two. The primary point of the Second Amendment was to ensure that the people remain more powerful than the government, in reality, rather than just in theory. One of my favorite statements regarding those who advocate gun restrictions goes something like this: “Saying that the Second Amendment is there so we can go hunting is like saying that the First Amendment is there so we can write the Sports page.” The right to keep and bear arms was not enumerated frivolously.
The idea set down by our founding fathers are excellent, and the theory sound, but I live in reality — and so does Kevin. As one commenter in those discussions put it, “How do you eat an elephant? One bite at a time.”
I must digress here for a moment, and bring up a different blog discussion that took place a few years ago on Steven Den Beste’s site. In it, Den Beste (an atheist) discusses a different kind of “right” — as in “right and wrong” — and its link to religion…
Does an act have an inherent ethical value?
Is an act right because God says it is right, or does God say it is right because it is right? In other words, either (1) the act has no inherent ethical value, but is assigned a value of “right” or “wrong” solely based on an arbitrary edict from God, or (2) God recognizes the inherent value of the act and then passes this on to us as received wisdom.
Whichever of these a Christian (or any other believer in a religion based on deities) chooses leaves him in a bind. If “wrong” acts are not inherently wrong, but only wrong because of God’s arbitrary edicts, then the Christian must face the possibility that God could change His mind. God could appear tomorrow, ten miles high, astride Jerusalem and announce in a booming voice that henceforth only murderers and torturers would be permitted into heaven, that slavery was a good thing, that genocide was noble and that anyone who helped a neighbor in need would burn in Hell for all eternity.[…]
Most Christians reject this possibility prima facie. But that leaves them with the other alternative, which is that the ethical value of the act exists independently of God’s declaration of it. God is not the source of the ethical value of the act, but only a convenient conduit by which we learn of that ethical value.
I think this is a solid argument, but barring the likelyhood of God appearing “ten miles high, astride Jerusalem” anytime soon, the reasoning therein has a lot more practical application within the context of this gun rights argument.
In other words: When the founders of our country wrote the Bill of Rights, did the rights they enumerated become rights because they wrote it down there, or did they write it down in order to specify that this was a right we already had? Did they create the right or simply describe it?
Most of them would have said they were merely specifying rights that clearly existed within the bounds of the Constitution they had written. In other words, it (theoretically) wasn’t even necessary for the founding fathers to have written the Bill of Rights, because it really just specifies things that the core Constitution already contains. The Constitution was in part written as a listing of specific powers the government had, with the assumption that if the paper doesn’t say it, then the government can’t do it. Since it didn’t say government could restrict guns, then, well, of course the government can’t restrict guns.
It did not take them too long to realize that future leaders would try to overreach the government’s power, however; so they decided it would be a good idea to specifically state the rights (already held by the people) that were most important to the preservation of freedom.
So… the gun rights absolutists’ argument is essentially that if we accept that the government does have the right to restrict gun ownership, then we accept that — like Steven Den Beste’s hypothetical god — government could tomorrow decide to ban all guns and we have already accepted their authority to do so.
The majority of society already believes that government has that power, and since government gets its power from the people, the government in the long run gets its power from whatever most of the people believe. (If this were not true, cities across the country would not be able to ban smoking in all restaurants!) So while both the Absolutists and the Incrementalists have the same goal in mind, the absolutists are trying to win the war by fighting a battle that has already been lost. What they should be attempting is to retake lost ground in a new battle.
Thus, the pragmatists approach to regaining gun rights seems to me to be the most effective. You incrementally “rent” back the rights that have effectively already been lost, and when you have enough power on your side, only then do you… *ahem*… pull the trigger and attempt to reassert the absoluteness of those rights — perhaps through new legislation that clarifies the true meaning of the Second Amendment. (Perhaps such a law could, for example, clarify that the first clause of the Amendment is descriptive and not restrictive? I’m not a lawyer, but I’m sure we’ll think of something.)
As things stand now, trying to implement a federal policy stating that there are to be no restrictions on gun rights constitutes a sea change in public philosophy — though it is becoming less and less of one as time passes and more states ease restrictions, (as illustrated in the map at the bottom of this post).
We’re getting there… “one bite at a time.”
Update– Steven Den Beste writes via email:
Are you aware of the history of the Bill of Rights?
There were a number of questions where were quite contentious at the Constitutional Convention in Philadelphia, as to whether they should have been included in the Constution proper when it was presented to the states for ratification.
There were concerns by some that the issues, if left out, would lead to government abuse. There were concerns by others that if too much was put into the Constitution there was a risk that it wouldn’t be ratified at all.
The compromise they came up with was based on the recognition that the country needed a charter. So those issues were left out, but everyone agreed that if the Constitution was ratified, that the first Congress would then propose those issues as amendments.
There were 12 of them. Ten were ratified immediately, and those ten are what we call the Bill of Rights. (The eleventh one was ratified about 25 years ago, interestingly. The twelfth one is dead and won’t ever be ratified because it would increase the size of the House of Representatives to something like 5000.)
So the historical record nicely straddles the question of whether those are natural rights **recognized** by the Bill of Rights or rights effectively **created** by the Bill of Rights.
As a practical matter, though, that’s a difference that makes no difference.
Duly noted. Sometimes my understanding of history is a bit more of a “broad sweep” than I realize, and such corrections are welcome.
As he also notes, in practical terms it makes little difference — unless of course the government passes a new Constitutional Amendment repealing the 2nd Amendment. They could do so if there were enough support; this is what Kevin refers to as “the mistake a free society only gets to make once.”