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The Right to Bear Arms is an Individual Right!

December 25, 2012

My great objection to this government is, that it does not leave us the means of defending our rights or of waging war against tyrants.” — Patrick Henry

Contrary to popular belief, the Americans did not invent the still controversial “right to bear arms” through the founding fathers’ ratification of the Second Amendment. They merely recognized, secured or enshrined the universal, self-evident, axiomatic principle that every man’s right to self-defense should be inviolable. For a man cannot be free– that is, free to live and to pursue his happiness– if he’s curtailed by law, decree or any political shackles to protect his life against any kinds of man-made harms or intrusions.

Tons of theories, anti-concepts, legal dogmas and vague political policies may have been invented over the past hundreds of years to surreptitiously deny individuals of their right to self-defense, however, what remains very clear is that every man is an end in himself. The individual is sovereign; his life is sacred.

The right to bear arms, which is undeniably part of the principle of personal self-defense, may have been obfuscated by modern legal theories and tragic events that warrant the collectivist premise that ‘guns are too dangerous to be in the hands of imperfect, selfish humans’, but what most people take for granted is that this cherished ‘right’ transcends time, social dogma or political expediency. Individuals have no duty or obligation at all to follow or obey evil laws and policies. Instead, every rational individual has the duty to reject or destroy destructive laws that are inimical to his life, security and interests.

It should be self-evident to educated people that a law is enacted to protect man’s rights against criminals, fraud or undue invasion (by both private individuals and the government). Since human beings are not perceptual animals, they should have the ability, skills and foresight to form a society that embodies their aspirations, beliefs and goals. A society, which cannot exist without individuals willing to group and associate, has no inherent ‘right’ at all. It is not a sovereign entity– it has no life of its own, no free will, no rights. Therefore, a society- or any collective- cannot acquire rights, and it cannot be used as a weapon against any minority or any group of individuals. There is no such thing as a collective right.

This ancient battle between individual rights versus collective rights was best explained by French political philosopher and legal theorist Frédéric Bastiat who said, to wit:

Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

No person can acquire any additional or special rights by joining a group or collective. Since a society or collective has no rights, an individual can neither obtain new special rights by affiliating with a group nor lose the rights which he does possess. Like Bastiat clearly said, this principle of individual rights is the ultimate, absolute foundation of all collectives, affiliations or associations.

Now observe that the preamble to our New Constitution starts with the word “we”. Unfortunately, the Philippine’s preamble, which was slightly distorted, reveals the Filipino’s collectivist, semi-theocratic, simplistic mindset:

“We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good…”

Compare that with the American preamble, which simply states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

If the sole basis of the law is man’s individual rights– to protect man’s life, liberty and property– the main purpose of the Constitution, the general provisions of which must be tailored to the rights-protection principle, is to limit the powers/authority of government. This means that the Constitution neither creates nor grant rights; it merely recognizes their self-evident value and existence.

To secure rights and to protect the First Amendment, America’s founding fathers ratified the Second Amendment– which states, “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”— because they believed that it is part of man’s natural rights.

Many legal historians argue that the origin of the Second Amendment can be traced to the English Bill of Rights of 1689 that includes provisions guaranteeing the right of Protestants against disarmament by the Crown. Texts of the English Bill of Rights state:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Many early legal scholars believed that the right to bear arms, being part of man’s natural rights, cannot be abridged by law or the Crown.

The right of every person against disarmament should be self-explanatory. Since everybody is responsible for his own life, it follows that every man is entitled to protect his life, property and his family against existential threat, robbery or invasion. Although it is crystal clear that the classical role (or proper role) of government is to protect the rights of ever social member, this should not be arbitrarily taken as an excuse or alibi to disarm the public.

However, it is worthy of note that there are two clashing views or theories concerning the philosophical foundation or validity of the Second Amendment or the right to bear arms.

Some legal scholars and theorists argue that the right to bear arms is based on the individual rights of every American citizen, thus it cannot be restricted or abridged by laws or legislative bodies. Under this ‘individual right’ theory, people are entitled to possess and carry firearms for their own protection and self-defense; hence this right cannot be infringed.

On the other hand, some scholars contend that people had a ‘right’ to bear arms only in militia service. Under this view, such a right is limited and considered a ‘collective’ right. This collective rights theory postulates that individuals have no constitutionally protected right to own and possess weapons and that the government (federal, state and local) holds the power to regulate firearms without abridging a constitutional right.

The U.S. Supreme Court established a collective rights view in 1939 in United States v. Miller, wherein it ruled that the Congress had the authority to regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because there was no proof that the shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated milita…”

This collective right precedent remained valid only for nearly seven decades when in 2008 the high court revisited the matter in District of Columbia v. Heller. The plaintiff in this case challenged the validity of the Washington D.C. gun ban, a law that was in force for more than three decades. In a historic 5-4 decision, the high court, after scrupulously tackling the tradition and history of the Second Amendment, finally declared that the founding fathers intended to establish an individual right for Americans to own and carry firearms.

Conservative Justice Antonin Scalia, who penned the majority decision, stated:

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.

Scalia was absolutely right. The writings of the founding fathers explicitly show that they never used the term collective right nor was it their style to refer to individual rights as ‘collective rights’.

To address the issue of “well-regulated militia”, which is being used as the basis for collective rights theory, the Court stated that “[t]he adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”

In Heller the majority repudiated the long established theory that the term “to bear arms” implies only the military use of arms:

It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.”

There should be no confusion or contradiction between the prefatory clause (“A well regulated militia being necessary to the security of a free State”) and  the operative clause (“the right of the People to keep and bear arms shall not be infringed”). As explained in the majority decision, the prefatory clause simply declares the intention for which the right was codified: “to prevent elimination of the militia.”

As the Court states, to wit:

 We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The purpose of both the prefatory clause and operative clause was to prevent “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right.”

See? America’s founding fathers were a bunch of visionaries and geniuses. Too bad the country is being currently ruled by politically naif liberals and potential tyrants.

What the proponents of collective rights theory are trying to argue is that the people have a right to individual self-defense, but with respect to gun ownership people can have it only as a collective right. This view suggests that guns can be acquired (not owned) and used only as a collective tool, which means that individuals have no right at all to own and carry guns for their protection and self-defense.

I believe that the collective right interpretation must fail because-

  1. there is no such entity/thing as a collective right
  2. the basis of alleged group rights (e.g., of a corporation or association) is the individual rights of its members
  3. only the individuals can have rights

A right that requires an individual to join a group or a militia, for its constitutional validity, is a mockery of the proper concept of ‘rights’, which simply means freedom of action in a social context. As Justice Scalia argued in the majority decision, the clause “right of the people”, which was also used in the Ninth Amendment and other instances, “unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Certain constitutional provisions also refer to the term “the people” in a context other than ‘rights’– the Tenth Amendment, §2 of Article I, and the famous preamble “We the people”. Scalia said that “[t]hose provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.”

Now, what is undeniably clear is that the purpose of the Second Amendment is to establish individuals’ right to personal self-defense. This is very consistent with the founding fathers’ view on individual rights and liberties– that every man is entitled to his right to LIFE, liberty, property and pursuit of happiness. Thus, they envisioned a sovereign individual who must have the capacity and be well-equipped to defend himself not only against criminals, but also against an oppressive, tyrannical government.

The best explanation to this “self-defense” and “free State” view can be found in Thomas Jefferson’s Declaration of Independence.

In that great document Jefferson wrote (emphasis mine):

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.

Jefferson harbored this skepticism or belief that “the people can not be all, and always, well informed.” Yes, America was founded by geniuses during the Age of Enlightenment, but it has been- and is currently being- run by political naifs and welfare imbeciles. This is the reason why the founding fathers envisioned an armed citizenry that must be strong and prepared enough to fight government tyranny. Thus he said: “And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

Like self-defense, the right of the people to abolish their oppressive, tyrannical government is inherent and part of their humanity. No amount of political edict or law can ever restrict or abolish this self-evident right, for a destructive, abusive regime is worse or more evil than a band of cold-blooded murderers.

The following statements were made by various founding fathers prior to the adoption of the Second Amendment. While most date from before the wording of the second amendment was established, four were made during the 1789 debates over its adoption:

Thomas Jefferson

  • No freeman shall ever be debarred the use of arms.
    • Proposed Virginia Constitution, June, 1776.
  • The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, … or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.

John Adams

  • Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence.
    • As defense attorney for the British soldiers on trial for the Boston Massacre. Reported in L. Kinvin Wroth and Hiller B. Zobel, ed., Legal Papers of John Adams (Cambridge, Mass: Harvard University Press, 1965), 3:248.
  • To see that the people be continually trained up in the exercise of arms, and the militia lodged only in the people’s hands.
    • Marchamont Nedhams, reported in Adams’, ‘A Defense of the Constitutions of the Government of the United States of America 3:471 (1788); Adams wrote there that “[T]he rule in general is excellent”.
  • To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.
    • A Defence of the Constitutions of the United States 3:475 (1787-1788).

James Madison

  • The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for the common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
  • In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

You may view the rest of the quotations here.

2 Comments leave one →
  1. December 27, 2012 3:38

    Machiavelli once said that being unarmed brings loathing to the unarmed in The Prince.


  1. Philippine Daily Pravda’s Renewed Tabloid War Versus Gun Owners « THE VINCENTON POST

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