The conclusion of five year's work on Constitutional gun rights and the USA's natural rights finds the 2nd Amendment completely meaningless. In particular, when anyone bearing arms shoots an innocent person to death, the shot person's right to bear arms is infringed. Hence there is no barrier in Constitutional law to gun-violence tax and mandatory firearm insurance. However rights to guns as property for self defense, sports, and hunting do remain on the table, so natural rights do solve the problem from the perspective of Constitutional interpretation.
This article describes the current law, gun-control issues, and major, problematic paradoxes at both ends of the 2nd Amendment. At the beginning, rights to form "a well regulated militia" is paradoxical because, when the Bill of Rights was written, the USA's army was so insignificantly tiny as to be non existent, whereas the USA has a real army now. At the end, the right to bear arms "shall not be infringed" is also irresolutely paradoxical, because shooting someone to death infringes on their right to bear arms. As such, the Amendment could be interpreted to mean either banning arms entirely, or any number of restrictions to protect the primary right to life, or none at all. Federal and State Supreme Courts have reached the best conclusions they can for their constituents, but the entire debate about the 2nd Amendment itself remains totally meaningless. Notwithstanding, rights to firearms as property for self defense, sports, and hunting remain under the natural right of 'pursuit of happiness,' with specific limits on individuals who have shown themselves a likely threat to life contingent on current rates of rights abuse. As well as making huge political donations, the gun lobby has created so much false propaganda and fake facts, political decisions cannot be based on any reliable data from its side. A Constitutional Amendment, based on state-sponsored independent research, is really necessary for a fair solution. Gun-violence tax to pay for its cost, as well as mandatory firearms insurance, are logical and valid at the federal level, and already in place in some areas.
Preface. Most people presume rights to armed rebellion and self defense as immutable. But the Supreme Court has found they are not in various ways, according to varying interpretations of natural rights. Most people don't know what the current law is, or if so, WHY it is, either on 'forming a well-regulated militia,' or in variations between states on justified homicide and open/concealed carry&ndeash; even though those topics are nowhere near as controversial as ideas of absolute infringement.
Rights to Forming a Militia
When the Bill of Rights was written in 1791, the USA had such a tiny army that is that it was effectively nothing. Most of the military had been dismissed in 1784, after the War of Independence was over. And there was significant fear of slave rebellion, particularly in Virgina (see "The Second Amendment was ratified to preserve slavery" for a summary of it.p>So the 2nd Amendment was originally written to enable draft of civilians should slave war break out (See footnote 1). But later, in 1794, the USA created its own standing army. At that time, the army was still very small, so the 2nd Amendment was kept. Now the USA military forces are six times larger than any other nation's, consuming over half of the nation's $2 trillion discretionary budget, so it can no longer be claimed that it is necessary to allow citizens to bear arms for forming the country's own militia.
However, another objection rose, that 'forming a well-regulated militia' could refer to the need to rebel against a corrupted government, of which there was much concern at the time. So, a 'well-regulated militia' could NOT ONLY refer to the USA's own standing army, BUT ALSO one created in insurrection. This put the court system itself in a bit of a dilemma as to how to respond to armed insurrections.
The Federal Supreme Court's decision is decidedly contrary to common belief. It decided that insurrection might appear justifiable (we being no more than noble savages. as drawn from the thought in Rousseau's Social Contract). HOWEVER, the US government still has an obligation to respond with greater force, as per its own charter. Therefore, AFTER bearing arms against the government, people lose their right to be treated as US citizens, as per current Supreme Court opinion. Given the current size and power of the US armed forces, it's difficult to interpret the 2nd Amendment as meaning anything particularly significant with regard to insurrection; notwithstanding, rights to gun ownership as property, under the natural right, 'pursuit of happiness,' remains, making the 2nd Amendment unnecessary for this purpose.
After bearing arms against the US government, citizens have rights only so far as extended to military combatants in time of war.
The "Right of the People"
This article is about conflicts between the USA's 'natural rights' and 'Constitutional rights.' Most people think natural rights are only 'self evident,' because Franklin made that change to Jefferson's original phrase 'sacred and undeniable.'
However, people’s intuitions differ as to what natural rights should be, or how to resolve conflicts between them. For example, France holds 'freedom, fraternity, and equality’ to be its own self-evident natural rights too; and many gun owners, wishing to protect their property, feel their liberty can take precedence over another’s life. However, the USA has generally been more successful in resolving such conflicts, because Jefferson’s choice of natural rights was based not on intuition, but on reasoned deductions from the natural human condition ('empirically'), as drawn in Locke's 150,000-word "Essay Concerning Human Understanding,' mostly in Book 2, Chapter 21, On Power. Locke derives natural rights in an extensive argument, roughly summarized as the following hierarchy:
Because the USA's natural rights were defined empirically, they can resolve disputes far more effectively than those in other systems, and moreover, enable Positive Law, which is law designed to increase freedom rather than impose restrictions. From the natural rights, therefore, the
Since that time, many objections have arisen to Locke's necessary premise of the existence of a benign God. Human Rights attempt to define universal rights that do not require assuming the existence of God. In the last 300 years, human rights has found rational ways to define rights to life and liberty, but not to pursuit of happiness. Thus, logically, proponents of human rights wish to privatize schools, libraries, museums, parks, etc. However they have not been successful in convincing the public that their conclusions are better than Locke's, and as things are, the natural rights chosen by Jefferson from the ideas of Locke remain the only rationally complete guide to resolution of Constitutional disputes, which the Supreme Court looks to when considering the intent of the Founding Fathers. Notwithstanding, there is also the prior existing self evident interpretation, so some states in the USA have decided to use human rights, rather than natural rights, to define decisions, despite human rights not providing a complete rational explanation for the Jeffersonian rights, especially with respect to liberties that enable people to take life (lethal self defense, abortion, and the death penalty), and any pursuit of happiness.
With respect to gun legislation, that means every single state has different laws. See for example "State Constitutional Right to Keep and Bear Arms Provisions," by Prof. Eugene Volokh, UCLA Law School
Rights to Lethal Self Defense
As the USA does now have its own standing army, some argue that the 2nd Amendment no longer justifies any gun ownership at all. However the Supreme Court has so far decided on a much more liberal interpretation. It argues, because there has been no rationale, so far, for actually removing the rights of citizens to personal self defense, justified manslaughter is still permitted, under conditioned circumstances that vary by state.
Across the different states, views on rights to lethal self defense have been dominated by opinions on the rightfulness of killing, depending on historical differences of each state's religious views on how the existence of an afterlife affect laws about homicide. These differences derive from different interpretations of the inalienable natural right to life as defined in the country's formation, in the Declaration of Independence.
- Some agree with the Federal view, which is based on a Lockean interpretation of such natural rights as 'Life, Liberty, and the Pursuit of Happiness.' Locke's argument requires the existence of a benign God as a premise, which means, the Federal view is that justified homicide is generally OK, because there is an afterlife where any injustice could be compensated. Texas in particular agrees with the Federal view, and therefore has the widest permissions for open and concealed carry, as well as the 'Castle doctrine' for self defense.
The Castle doctrine has caused deep problems since beliefs in a Christian God have declined For example, see "Local pastor reacts to Fort Worth area church shooting." (KTBS, 12/30/19), as one example of churches saying their congregation should kill. The Texan churches now post the following sign at church entrances, and encourage other churches, schools, and businesses to do the same.
- Other States later decided the existence of an afterlife should not affect 'human rights,' and therefore, justified homicide is only permitted under very rare circumstances.
However individual ethics are most frequently overruled by personal morality. Sadly, as things are in the USA, almost no one except Constitutional professors and the Supreme Court understands what that really means. There's widespread objection even to considering a theistic basis for the natural rights in the Declaration of Independence, and hence by promulgation of authority, to Constitutional rights, even though, historically, that is how the differences came to exist across Federal and State courts. Constitutional professors try to avoid acknowledging the necessity of the existence of God to justify natural rights, under the Lockean theory implemented by the Federal Supreme Court for interpretation of Constitutional law. It's not fashionable to consider the USA as a theistic nation, even if that is what is required to justify its own rebellion against the British Empire, as stated in the Declaration of Independence, within which Jefferson formulated natural rights on the basis of Locke's 'Essay on Human Understanding.' Most attorneys only read Locke's 'Second Treatise of Government,' and have no idea the 'Essay of Human Understanding' even exists, because, being theistic in basis, the Lockean theory of natural rights in the Declaration of Independence is not taught in public schools. So this all is not something you will hear many places, but if you want to learn about it, there are many relevant articles on this site.
Hence, ethically speaking, the inalienable right to life means that people who do not believe in judgment by God in an afterlife should never use lethal self defense, except if in direct and immediate threat of being killed themselves. As per Lockean interpretations of natural rights, Believers in God need to consider, very carefully, that taking a life by act of free will deprives the killed of the best judgment possible by God, Who naturally prefers to decide on the length of a person's life by His own will.
Rights to Bear Arms "Shall not be Infringed"
Many take an absolutist position pro gun rights, but it runs into a problem with, say, the infringed rights to bear arms of the >500,000 innocent US citizens shot to death since 9/11. Sadly, 2nd-amendment supporters have been very disinterested in defending the rights of innocents still being shot to death, even though they all insist the right to bear arms should never be infringed. The killed lose their right to life too, but when Hamilton wrote the law, he didn't take the priority of right to life outside military combatants during time of war into account either.
It's not surprising, as Hamilton was a college dropout who bought his way into the bar after he finished being a General. He was very enthusiastic about making laws, but not really educated properly for it. But that's all the Union had. So it's not really what he intended to do, but he did write a totally nonsensical law, because, when gun owners kill other people with their guns, even putting aside right to life, the gun killers infringe on the rights of the people they are killing to own guns.
"Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them."
President Obama, Obama's Speech on Gun Control Measures, TIME, Jan 15, 2016
It is a primary objective of the Supreme Court to 'balance rights,' as Obama stated, However the 'balancing,' which it continually asserts between rights to life and liberty, is continually challenged, due to absolutist interpretations. Any argument about what the 2nd amendment means now is rather pointless, because it contains an inherent paradox that can always be interpreted as any particular group prefers, resulting in endless dispute.
The meaning of the 2nd Amendment is entirely a matter of interpretation. Anyone can interpret it the way they want, and with the existing language, there's no way to say who is right and who is wrong. Due to the opening clause's paradox, even banning guns entirely outside the government's army could be justified with the existing language (see Footnote 2). Alternatively, 'the right to bear arms...shall not be infringed' could be interpreted as absolute rights to bear arms for all US citizens. Any intermediate position is possible. That's why the 2nd Amendment is nonsensical. Its totally open to any interpretation. When a statement is so ambiguous, opposing absolute positions at each end of the possible spectrum tend to increase in popularity, because they are the simplest; resulting in extensive political conflict. Another Constitutional Amendment is the only rational solution.
A frequent objection is that the 2nd Amendment only restricts what the government can do. But this is not true for Constitutional Law. For example, rights to free speech and privacy restrict Facebook on what it can consider unsuitable discussion, and require it to ask permission to share data.
Because one interpretation is that the 2nd amendment does not entitle people to bear arms at all now that there is a standing army, its entire proposition is at fault. No final conclusions can reasonably be drawn from a nonsensical rule. The only real resolution is a Constitutional amendment, restating the rule to include the rights to bear arms of those who are shot to death during times of peace.
Rationally, such restatement should include some restrictions on those who have already broken the law, who place other citizens at high risk of being shot to death, and thus infringing on the rights of the killed to bear arms. Until then, NRA lawsuits countering attempts to protect lives of the innocent will continue, at the rate of ~40/year, based on an absurd absolutist interpretation of the horrifically flawed 2nd amendment.
Gun Regulation and Statistics
As already established, innocents who are shot to death lose their right to bear arms. Thus despite the popular 'shall not be infringed' phrase, the 2nd Amendment provides no way at all to invalidate gun safety regulation. Overall, Australia's success with gun-safety regulation deserves examination. But John Lott, NRA's the hero of the slogan More guns, less crime, has strongly objected to prior statements on Australia's success. He published a blog with a graph to 'prove us wrong.' The following graph shows how the first part of how John Lott deliberately distorted the data:
After I published my own criticism on this site in my "9/16 Report on Firearm Fatalities in the USA", John Lott changed his page entirely to show homicides, rather than all gun fatalities, for the same time period, which is also a distortion of the number of innocent deaths, because it does not take into account fatal accidents to self and others, as well as suicides. Moreover, while trying to figure out discrepancies between my graphs and his, I found he only shows data for men without saying so!
Lott must have compared all the possible graphs he could make to 'prove I am wrong' to procure these results, so it is undeniable that John Lott deliberately distorts data in his favor. Most frequently, when I present my own graphs from 10,000 points of CDC and FBI data, pro-gun advocates invariably tell me I am making it up. For example, the best analysis I can do with available data (in the "9/16 Report") shows that homicide due to felonious crime by strangers accounts for <6% of all firearm fatalities, yet it is the demon at the door which remains the NRA's favorite justification for blocking gun-control legislation.
Given that John Lott is on the front line of the NRA's attack on gun regulation, and distorts data himself, further debate of statistics with NRA defenders is rather pointless. All I can say is, his 'more guns, less crime' thesis applies to only 6% of all firearm fatalities as best can be determined from the public data which the NRA has allowed us to receive (see "Calls for More Data" on this site.)
As well as making huge political donations, the gun lobby has propagated so much false propaganda and fake facts, political decisions cannot be based on any data from their side. A Constitutional Amendment, based on state-sponsored independent research, is really necessary for fair resolution. (See Footnote 3).
As firearm fatalities are now at least equal to those from auto accidents, this would start with equal government investment in researching gun safety to that for cars.
But if you seek details, my own research agrees with a dozen scientific journal papers that guns are 3~4 times more likely to injure or kill gun owners and their families, than to stop a crime (see "Guns are more dangerous to owners than to criminals" on this site). Also, that link describes a new analysis that during attempts of self defense, 2 out of 3 firearm fatalities are accidental killings of the gun owner, family or friends, rather than of criminal aggressors, most frequently from people shooting themselves or others by accident with a bed-side handgun when no criminal threat is present at all.
But Australia has a much more significant contribution on gun regulation than statistics, from its comic Jim Jeffries, which is much more worth watching than looking at statistical data:
Gun Violence Tax and Mandatory Firearm Insurance
As shooting a person to death infringes on their right to bear arms, there is no barrier in Constitutional law to gun-violence tax and mandatory firearm insurance. Please see "Gun-Violence Tax and Mandatory Insurance: Current Programs" on this site for more infomation on current and proposed programs.
Wishing you Long Life, Liberty, and Happiness
– Ernest Meyer