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A Thought Experiment on Gun Rights

I am so thankful that the Virginia General Assembly did nothing on guns today. That might sound subversive (betcha it’s not the most subversive item on this blog!) but doing nothing can be wise if doing something is foolish.

But I have been pondering a thought experiment. Let’s compare, say the Second Amendment, with the so-called constitutional right to abortion.

Let’s pretend there was an amendment to the Constitution that reads like this:

A women’s reproductive rights being necessary to the security of a free state, the right to an abortion shall not be infringed.

Now talk about subversive! (I take no credit that that amendment gets introduced! Besides there already is an amendment like that: It’s called the ERA.)

But I digress (mighty tarantula, back on focus!): What would the pro-abortionists say to a state that wanted to restrict the abortion right?

Probably something like: “‘Shall not be infringed’ means what it says: ‘Shall not be infringed.'” No restrictions on abortions at all! Or any restrictions would have to have a compelling state reason.

Let’s now look at the Second Amendment:

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.

So what does “Shall not be infringed” mean? Hmmm? There are in my view three reasons for an armed citizenry:

  1. Self-defense of the person against criminals
  2. Defense of the nation against a foreign invader
  3. Defense of liberty against a tyrannical government

Now the libs hair is about to be on fire – better get near a fire extinguisher!

Several good quotes on arms bearing by Founding Fathers:

“A free people ought not only to be armed, but disciplined…”

George Washington, First Address to Congress, 1790

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Article I, Section 13, Virginia Bill of Rights (attributed to George Mason)

How about this provision from the 1688 English Bill of Rights:

Subjects’ Arms.

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

The context of this was apparently an attempt by the Catholic King James II to arm (illegally?) the Catholics and disarm the majority Protestants. See this law journal article from Chicago-Kent School of Law. However, the larger point is: Self-defense is a fundamental right.

And there is a deeper principle: Prof. Eugene Volokh has this wonderful list of early Constitutional interpretation on the right to keep and bear arms. Try this ancient quote of Tacitus from Justice Joseph Story (yes Tacitus the Roman historian, that one):

    It would be well for Americans to reflect upon the passage in Tacitus, (Hist. IV. ch. 74):  “Nam neque quies sine armis, neque arma, sine stipendiis, neque stipendia sine tributis, haberi queunt.”  Is there any escape from a large standing army, but in a well disciplined militia?  There is much wholesome instruction on this subject in 1 Black. Comm. ch. 13, p. 408 to 417.

Amazing. Is there a fire extinguisher in the house? Hair is on fire all over Richmond!

So back to my thought experiment! I would suggest “…shall not be infringed…” means that the right to keep and bear arms ought to only be regulated when it is necessary to protect the public. Any such regulation ought to be necessary and effective and ought not be an undue restriction on the core values of the right – the three principles stated above: self-defnese against crime, defense of the nation against invasion and defense of our liberties. Few, if any of the gun laws advocated by the Democrats would meet that standard.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

One Response to “A Thought Experiment on Gun Rights”

  1. Tess Ailshire says:

    I maintain the antis firmly and truly believe that infringement is necessary to protect the public. They honestly and sincerely believe that registration, permitting, background checks, etc. are not undue restrictions. And they have convinced themselves that such proposals are effective.

    And therein lies the dilemma. They know their interpretation to be correct. As do we know it to be incorrect.

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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