If the Second Amendment was Repealed, What Happens to the Right to Keep and Bear Arms?

Peter W. Wickham, Jr.

Hey, want to win a quick bet with one of your friends or, even more fun, with one of your in-laws? Ask them to show you where in the U.S. Constitution that the Supreme Court is designated the final arbiter in deciding what is "Constitutional" and what is not. Oh, you're not sure yourself? Well, go look it up and I'll wait.

Back already? Find it? That's okay because the reason you didn't find it is because it isn't in there. In a case that came before it, Marbury v. Madison, the Supreme Court gave itself the power to question the Constitutionality of the statutes that particular case was filed under and for all government actions in the future through a process known as Judicial Review. So after that the government, or at least one branch, would decide how much power the government could have and, unfortunately, how much liberty could be taken from the people when they got in the way of the government exercising that power. This is like the coaching staff of the home team working as the umpires and referees during the game. If you're on the visiting team, don't expect a quick and easy victory.

Now one of the first points we must come to a common understanding of is this: Government does not actually exist outside the abstract concept in Man's mind. When everybody, and I as the author of this article, refer to government as a physical entity, we are referring to a group of people who have chosen to rule over others. It is the struggle between these two groups of humans - the governed "We The People" and the governing - that has shaped most of history. Judge Andrew Napolitano in his book Constitutional Chaos: What Happens When The Government Breaks Its Own Laws describes this conflict as:

"The positivist (government people) would say since the government gives freedom, the government can take it away. The Natural Law says only God gives freedom and the government can only take it away as a punishment for violating the Natural Law, and then only through due process.

To a positivist, the government's goal is to bring about the greatest benefit to the greatest number of people. Under the Natural Law, the only legitimate goal of government is to secure liberty, which is the freedom to obey one's own free will and conscience, rather that the free wills or consciences of others."

The Constitution was a contract of sorts between these two parties where the central government was given a few distinct duties and the authority was granted to perform these tasks. In return the people would obey a few laws that protected one citizen from being abused by another. All other powers, liberties, and rights were reserved to the people and their representatives, the separate States. But it seems some people, if you don't give them a specific list of things they can't do, will always stretch out for more power and that is where the doctrine of "implied powers" grew. There has been a cold war brewing ever since the beginning which has sometimes boiled hot and the Supreme Court has been an accomplice to the government train of abuses the whole time. There have been a few token decisions protecting the people's rights but at a ratio of three steps down for every two steps up, one can find one's way from the top floor to the basement in no time.

The recent Heller case showed that even though the Court affirmed that the rights protected by the 2nd Amendment belong to the individual citizen, they found the D.C. handgun ban was unconstitutional because it was "unreasonable" and not necessarily because it "infringed" as the 2nd Amendment is worded. Gun-control fanatics immediately picked up on this choice of language and they are working on the possibility that the District could impose a partial ban that is practically as effective at disarming the populace as a full ban that future courts might find reasonable. The other interesting argument they put forward is that the District is not part of the U.S. and is not bound to obey the Constitution (and you thought the secession issue had been settled). The Court has often allowed unconstitutional measures and actions by government agents as long as the actions were "necessary," "expedient," or "reasonable." Figuratively speaking, a reasonable man could go ahead and have sex with a women over her expressed objections as long as he did so in a necessarily expedient fashion. I think it's still rape.

We are now engaged in that great quadrennial mud wrestling contest known as the Presidential Election and the two major parties are offering us a geriatric warmongering fascist who will spread American values at gunpoint around the world using the U.S. military and an amateur egalitarian communist who will use our tax dollars to alleviate poverty everywhere in the world except the United States. The usual third parties aren't offering anything much better. Because the next occupant of the White House will probably get to nominate at least one Justice to the Court, there is a lot of hand wringing over getting the right man in place so he can make the right choice. The missed point of this anxiety is that all the candidates are positivists and any nominee they propose to Congress will be the same. Remember that part I said earlier about being on the visiting team?

Since you exist in nature, you have a natural right to perpetuate that existence, and that includes protecting your life and health from those entities in nature that can destroy both. Amongst living creatures, man is on the losing side when it comes to natural weapons inherent in his physical makeup ("My, what large teeth you have, grandma.") so he has to build them from the natural resources available to him. The right to keep and bear arms is a right derived from nature and man has a natural right to own, carry, and use these arms, of whatever degree of advanced technology that he chooses, as long as he does not intentionally cause unnecessary direct and measurable harm to another. The 2nd Amendment only recognizes this right and does not confer it on the citizen but only establishes that the government will honor it as part of its contract with the people.

The government is already in "breach of contract" on so many other issues, it is most likely it will break its promise on this one as well, but since this a natural right it will still exist even if the government does not recognize it. If you want to have it all you have to do is exercise it. If you have been thinking about buying a firearm or other type weapon, then now is the time to do so and practice how to be effective with them. If you have all the weapons you think you'll ever need (yeah right, that's what you told your spouse) then are you stocked up on the supplies you will need for them? It does not take a Nostradamus to see that the cold war between the governing and the governed might soon become hot again and we all should be ready.

When the British government started to oppress the colonists, there was a lot of grumbling, a little vandalism (tea anyone?), and elected legislative bodies sent some sternly worded letters to King George and the Parliament but not much in the way of war. But on April 19, 1775 when the British Army was sent to Lexington and Concord to confiscate "illegal" arms and materiel belonging to local militias, the people fought back and "fired the shot heard 'round the world." If only that our generation should be so bold and so brave.

Oh, who did the framers intend to be the final judges on how the Constitution should interpreted? Though they are not specifically listed for that purpose, one can peruse the collected works and writings of the founding fathers and see that the ones they chose to handle that job are mentioned in the document. The first three words, in fact...

Peter W. Wickham, Jr.
AKA The Ol' Grey Ghost

For further reading I would like to recommend along with Constitutional Chaos: What Happens When the Government Breaks Its Own Laws, Judge Napolitano's other two books, The Constitution in Exile and A Nation of Sheep. Also I would suggest reading The Tyranny of Good Intentions by Paul Craig Roberts and Lawrence M. Stratton and Hamilton's Curse by Thomas J. DiLorenzo.