What if I told you, that guns aren’t the point of the 2nd Amendment? To Keep and Bear Arms Across Time – pt1
What if I told you, that guns aren’t the point of the 2nd Amendment? Heads would be exploding in bi-partisan living color, right? Well, that’s what I’m saying: Guns aren’t the point of the 2nd Amendment (… 3… 2… 1…BOOM!). And while that will cause heads on both sides of the aisle to explode, they will do so for very different reasons. The Right side will explode, because they’d assume that such a statement intends to weaken, and/or limit our access to guns – which is the opposite meaning, purpose, and affect which that statement would have. The Left side (and not a few on ‘The Right’) – those who get the tactical point of their spin – will explode because they’d realize that such a statement, if widely understood and adopted, would not only lead to the loss of decades of their hard fought limitations upon arms, but would also explode their primary tool for making those restrictions: equating Arms, with Guns.
You see, despite the fact that firearms are the most effective, efficient, practical means with which to keep and bear arms, they are, as that simple fact implies, not the actual point of the 2nd Amendment, but only one means of our carrying out what is protected by that amendment. Despite what often seems to be the best efforts of those on all sides, the 2nd Amendment is not primarily about gun rights – in fact there is no such thing as ‘gun rights‘. Nope. Not. Things, of course, do not have rights, but by claiming a right to things, it eventually eliminates all rights, because it means that someone, somewhere, is obligated to supply what others have claimed a right to, whether they want to, or not – that’s not how rights work! BTW, that’s the same strategy behind demands that ‘Healthcare’ be treated as a ‘Right’.
What the 2nd Amendment is all about, is securing the right of each individual to be able to act in the defense of their community, persons, property and interests, by freely choosing the personal arms which in their judgment is best suited to that task. That’s possible, because the 2nd Amendment assures We The People, that the government will neither infringe upon those actions we deem necessary to take, nor will it make any law that would come between ourselves and those arms we may choose from in order to act.
With that in mind, take note of the word ‘Arms’ in the language of the 2nd Amendment :
‘…the right of the people to keep and bear Arms, shall not be infringed.’
If you keep in mind that this amendment was written during a time when ‘gentlemen’ still wore swords at times, and occasionally still used them, it becomes less surprising that the term refers to the general category of Arms, and that it was not, and is not, limited to only Firearms (or any particular quantity of them, for that matter). I’ve no idea why anyone should be surprised, in that the term Arms, predates the existence of firearms by many millennia, and examples are readily available from all quarters, existing and persisting across multiple nations and languages, from history and the birth pangs of Athenian democracy in 550 BC, when the radical democrat leader Pisistratus, forcibly disarmed the people ‘for their own good‘, to Rome in around 20 BC, and the first line of Virgil’s ‘Aenaid’,
“I sing of arms and the man who of old from the coasts of Troy came…”
, and we can trace a lengthy line for the general concept of ‘Arms’ ahead in time to England, before the English, spoke English. As James Wilson (a signer of the Declaration of Independence, member of the Constitutional Convention, one of the original members of the Supreme Court, and a significant legal theorist and a key founder of America’s system of jurisprudence) noted in his Lectures on Law, given a few short years after the Constitutional Convention which he played a large part in, the first ‘legal’ recognition of the vital concept of self defense not only predated our Constitution, but the English language, and even Norman England, reaching back into the the time of the Saxons,
“…With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognized in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons.”…”
Keeping arms in general, for the preservation of life and community, was commonly understood to apply to any number of personally held or carried weapons, for thousands of years before firearms ever came to be. The first common usage in the English language, as early as the year 1400; was of Arms, or ‘to arm’, having the non-weapon-specific meaning of “provide oneself with weapons” in order to extend the reach and power of your bodily arms, which was exactly the meaning that would later be developed and clarified into the language of Individual Rights, which is how the 2nd Amendment uses the term, in keeping, and bearing, not firearms, but Arms.
Importantly, the real heart of the 2nd Amendment is not weapons, but the right of self defense; or as Wilson more properly termed it, self preservation. That is the principle that the 2nd Amendment is safeguarding for us, and weapons are but the vital means to its ends, which can be seen to have been clearly understood in cases such as the Kentucky Supreme Court Case, Bliss v. Commonwealth (1820), which overturned a law against concealed weapons, as showing the broad understanding of what Arms referred to, and why,
“…In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise….”
, and again in Nunn vs. Georgia (1846) (as referenced in landmark SCOTUS case of D.C. v. Heller), that the arms which we could ‘keep and bear‘ were understood through their roots in the experiences of English history, to refer to far more than just firearms,
“…”The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”…”[emphasis mine]
Had it been the intention of the Americans of our Founder’s era, to limit our weaponry access to only firearms, they would have used the term Firearms (as they often did in other contexts), rather than the more general term ‘Arms‘. Arms refer to all manner of weapons available for use by an individual, whether clubs, bow & arrow, knives, swords, bayonets, or any of the various forms that arms have, and will, technologically evolve through across time, which an individual person might choose from to personally keep and bear, in order to extend the power of their body’s arms in their defense against threats to them, whether from their own govt gone rogue, or from the likes of mobs, or criminals.
As long as we retain that concept’s original meaning, it will continue to benefit and apply to us, protecting our right to keep and bear the arms of our choosing, so that long after gunpowder has gone the way of stone axes, the choice of arms available to us will continue to be safeguarded from being bound by legal restrictions to any one particular passing – and soon obsolete – form of arms.
If you don’t get what I mean, ask yourself if you’ve ever heard someone say ‘The 2nd Amdt was meant to apply to muskets, not AR-15s!‘. Or ‘The 2nd Amdt was meant to apply to militias, not civilians!‘ Yep That’s what I mean, which is at the heart of the “So?!” that we so desperately need to understand here.
Willingly going along with the notion that arms, mean guns, doesn’t protect your right to guns, it instead enables the discussion of ‘which guns‘ are to be protected, and who will be permitted to keep them – and which will not. OTOH, adhering to the meaning of arms as being “…any thing which a man takes in his hand in anger, to strike or assault another.”, and why, reminds us that the 2nd Amendment was made to render our govt powerless to restrict our keeping and bearing any personal arms that we might choose, for our individual and communal defense.
Common Sense Limitations
Protecting the individuals right of preserving and defending themselves (and by extension, the community), was so important to our Founder’s era, because they were well aware that most legislative references to arms, up to and including their time, were specifically made in order to legally disarm the public, as was done in this English decree from 1328,
“…come before the King’s justices, or other of the King’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure…”
As the concept of Individual Rights became better understood, particularly after England’s “Glorious Revolution”, government power, royal or otherwise, steadily began to become limited by the rights which the people were coming to be recognized to have… though, with some ‘common sense‘ limitations upon them, as with the English Bill of Rights, of 1689, which allowed,
That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.
As Blackstone explained, this wasn’t only about arms, or firearms, it was about the purpose and importance of the people having a right to them:
“… having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression…”
But as great a leap of progress as that was over that of earlier decrees, it didn’t require a great deal of thought to see that the ‘common sense‘ limitations which those protections retained (you know, keeping those Catholics, or Puritans, ‘sensibly’ disarmed), were too easily turned against one and all (hello Lexington and Concord!). We Americans rejected allowing such common sense limitations upon our right to keep and bear arms, keeping the 2nd Amendment worded as it still is, because we knew that all such good intentions had the effect of leaving unprotected, those who most needed their rights to be protected from those well intentioned sentiments which, in anxious times, drive public opinion and curry government favor, to the detriment of the individual, the minority, and by extension, to their collective liberty.
We The People rejected such ‘common sense’ limitations because we understood that those rights are not themselves things, or the things we associate with them, but are our liberty to act for the betterment and preservation of our lives – and that to be able to continue to do so, they as citizens, needed their fellow citizens in government, to know that those outside of government were fully able to ‘keep them honest‘, should they ever be tempted to attempt limiting some people’s rights, ‘for their own good‘.
And though that early understanding was still present as late as 1828, when Webster’s Dictionary defined ‘Arms’ as:
“…To take arms is to arm for attack or defense….In law, arms are any thing which a man takes in his hand in anger, to strike or assault another….”
, a shift in popular understanding was beginning to be felt, certainly by the 1830’s, as the newly fashionable German philosophies of the likes of Kant & Hegel, swept through our educational systems, and through its pupils, into society and our systems of government. Under that burgeoning pro-regressive leadership, that old ‘modern’, and ‘common sense‘ , pre-American, sort of talk began popping up again, expressing a growing desire to regress back away from the responsibilities of individual liberty, and towards more centrally consolidated powers. Despite the resistance shown to it in the previously cited cases of Bliss and Nunn, and well after the time that our Constitution and Bill of Rights were written, debated, and ratified, judicial decisions began to reflect the rising ideology of pro-regressive Positivist Law, especially after the Civil War, which inclined to narrow and restrict the understood definitions of what rights, and arms, were.
Given that, it wasn’t too long before Arms became accepted to mean what it is now defined as in Black’s Law Dictionary, that arms:,
“…cannot be made to cover such weapons as dirks, daggers, slung-shots, sword- canes, brass knuckles, and bowie knives. These are not military arms…”[emphasis added]
Swords, knives, and other forms of arms were still understood to be arms, of course… just not military arms. Sadly, for the integrity of the right of keeping and bearing arms, we didn’t have the equivalent of a National Rifle Association for Swords, or Bowie Knives, or any of the other forms which were no longer standard militarily sidearms, and so they were gradually separated in the public mind from the protections of the 2nd Amendment, enabling Arms to become identified with only firearms, rather than as a means to being armed – things, rather than concepts or actions.
One perhaps not so obvious reason why this matters, is that whenever you allow a general, high level concept, especially one that is an important principle of law, to be taken to refer exclusively to a set of particular physical things, then the true meaning of that concept becomes lost, and if we fail to understand the danger in permitting our timeless rights to be tied down to the transitory particulars of things in time, be they quill pens, parchment, swords, or muskets, then our sacred rights are put on a ruinous path to submission and obsolescence.
A prime example of just that process can be found in what is intended to be ‘accomplished’ through the most destructive of Saul Alinsky’s ‘Rules for Radicals‘, his lucky Rule #13:
“Pick the target, freeze it, personalize it, and polarize it”
There are few things more dangerous to a society of laws ( as I’ve touched on before), than permitting those higher abstractions, to be frozen to material objects, because it soon turns them into easy targets of cheap rhetorical tactics and demonstrations.
Where this has effectively brought us to today, is far down the path where the Individual Right ‘to bear arms‘ which the 2nd Amendment is meant to protect and secure against government aggression, was first transformed into a permission to keep and bear one particular form of arms (those currently in military use), later was reduced to only one particular form of those arms, Firearms, and then only under certain ‘common sense‘ conditions, which eventually enabled great swaths of the We The People of today to confuse those dimly remembered ‘rights’, with the sensationalized criminal abuses of our persons and rights, that are hyped as having been committed with the likes of a .38 Special, or an AR-15.
At the same time, another handy side effect of this verbal ju-jitsu, is that it elevates that particular material thing that you’re claiming to have a right to, over and above the original right (that of self defense, self preservation) itself (in many cities and states today, you can be punished for exercising your right of self defense, or even be effectively denied that right, because of the particular firearm you use to accomplish that), enabling all of our rights to be that much easier to be rhetorically, and politically, targeted, and diminished, a path which will, if we continue to follow it to the end, will see those rights being struck from the books.
Even if we somehow manage to adopt what some states already have, the so-called ‘Constitutional Carry’ permit, it will almost certainly be understood to refer to only a particular form of arms, rather than to the Individual Right to be armed – and how will Tazers, or someday, Lazers, fit into that ‘right’, and who will say so? A Right that has been transformed by its being successfully attached to a thing, becomes a thing that can be restricted, regulated, and eventually retired.
In case you haven’t noticed, that same process is being applied to our other individual rights, such as through a ‘right to health insurance’, and now to the Freedom of Speech, which is being reduced to the anti-concept of ‘hate speech’ (meaning conservative speech), effectively transforming the action of speaking, into the ‘things’ being spoken, which are then easily polarized as something which we all must be protected from, by those in power over us, and will eventually be eliminated. Alinsky’s Lucky #13, “Pick the target, freeze it, personalize it, and polarize it“, strikes again.
That ‘modern’ de-conceptualized, pro-regressive reading of the protections which the Bill of Rights in general, and the 2nd Amendment in particular, is meant to secure for us, would not have been taken seriously in the era that the 2nd Amendment was formulated, proposed, and ratified by We The People, in part because they understood that our individual rights are inherent in our nature as human beings, and not conveniences of time and place. Our Individual Rights are timeless, because they are derived not from particulars of time and place, but from the nature of being human, and as such they extend across all time (even in those times and places where they go unacknowledged), enabling us to both take those actions necessary for living as a human being, and to be free from the actions of those who’d take unwarranted actions against us.
Because that is true, I, you, and every American (or otherwise), has a natural right to defend their lives as best they can, with whatever personal arms they deem most appropriate, be that a sword or a .44 Magnum, and it is because America alone has that right safeguarded, our govt – on paper, if no longer in our minds – is powerless to infringe upon our ability to secure the arms of our choice – be they swords, crossbows, guns, or whatever exotic weaponry that tomorrow may bring.
But because that truth is no longer widely understood, we are continually beset with frightened and angry questions of ‘What can be done?! We must do something!‘, about the sorry state of our affairs, where Individual Rights are trampled, and empty platitudes are praised. Still, it is true that something must be done, but what can, or should, be done, is a question that depends a great deal upon what it is that you mean by ‘can’ and by ‘done’ – which we’ll get into in the next post.