Posts Tagged ‘Common Sense’

In Liberty’s Two Arms

January 26, 2008


In Liberty’s Two Arms

by David Kopel

This article appeared in Legal Times on January 14, 2008.


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All Second Amendment clauses protect gun rights

To understand the Second Amendment, it helps to consult Justice Stephen Breyer’s book Active Liberty.

This is not because the book reveals specifically how Breyer would vote in District of Columbia v. Heller, the upcoming Supreme Court case on the D.C. ban against owning handguns and using any firearm for self-defense in the home.

But Breyer’s book, through its philosophical discussions of the meaning of liberty, does show a way to reconcile the subordinate clause of the Second Amendment (the importance of the militia to a free state) and the main clause (gun ownership as an individual right). And this reconciliation of the two clauses strongly suggests that the D.C. gun bans are unconstitutional.

One could say that the families without guns are free-riders on the benefits from families with guns.


Active Liberty reminds us of the original meaning of “liberty” in the Greek city-states: the right of citizens to participate in their government. At the best periods in ancient Greece, as in New England town meetings, important public decisions were made democratically at assemblies of the people.

Active liberty, by itself, provides democracy, but it does nothing to protect minorities from the tyranny of the majority. Thus, Enlightenment philosophers articulated a principle of negative liberty: That a person has certain rights that even a majority cannot infringe.

Breyer explains that active liberty and negative liberty are both part of the Constitution. For example, in evaluating campaign finance restrictions, Breyer would balance the negative liberty aspect of the First Amendment (that government should not control political speech) with the active liberty aspect (the right of the people to a good system of elections).

As Breyer explains, active and negative liberty can conflict. In campaign finance regulation, negative liberty (“don’t control political speech”) conflicts with active liberty (“protect democratic elections”). For the Second Amendment, however, the active and negative liberty provisions reinforce each other.


The negative liberty aspect is in the Second Amendment’s main clause: “the right of the people to keep and bear arms shall not be infringed.” The clause derives from a long line of human rights philosophy about the right of individuals to defend themselves and their families. As Thomas Jefferson wrote in his model constitution for Virginia: “No freeman shall be debarred the use of arms in his own lands or tenements.”

In forbidding the possession or use of any functional firearm in the home, the D.C. law violates the Second Amendment’s main clause. Lawfully registered rifles and shotguns must be kept disassembled or locked up. There is no exception for self-defense.

Although the D.C. government’s Supreme Court brief claims that local courts might find an implicit self-defense exception, the government took the opposite position in 1977. Then, in successfully defending the self-defense ban, the District argued, and the city’s highest court agreed, that the statute deliberately banned self-defense in the home. The D.C. Court of Appeals ruled in McIntosh v. Washington that, even though owners of business premises were still allowed a limited degree of self-defense, the complete ban in the home was not an equal protection violation. The court found that there was a rational basis for the self-defense ban because of the great risk that people who had functional firearms in their home would kill in a domestic rage. (Extensive social science evidence disproves that court’s dire view of people who pass a background check to own licensed, registered guns.)


The introductory clause of the Second Amendment (“A well-regulated militia being necessary to the security of a free state”) comes not from the tradition of negative liberty, but from classical and Renaissance principles of republicanism, an active liberty tradition.

As David Hardy described in his 1986 law-review article “The Second Amendment and the Historiography of the Bill of Rights,” James Madison, in drafting the Second Amendment, blended the republican and human rights principles into a single amendment.

The active liberty clause is concerned with preserving citizens’ ability to contribute to the defense of their communities. For example, a threat might arise from a foreign attacker where the national army might not be able to respond in time. Likewise, the armed citizens of the founding era were often called upon by local officials to help search for escaped criminals or to protect frontier villages. More broadly, the republican philosophers worried that citizens who did not participate in the protection of their communities would become passive and dependent, and thereby lose virtues necessary to the survival of a free society.

Today, the government does not require citizens to serve in organized militias. Gun prohibition advocates claim that the Second Amendment therefore has no practical meaning.

David Kopel is an associate policy analyst at the Cato Institute in Washington, D.C.

More by David B. Kopel

Thomas Cooley, the greatest American legal scholar of the latter 19th century, anticipated this argument and explained why government neglect of the militia (the first clause) did not negate the second clause: If Second Amendment rights were limited to those enrolled in a militia, “the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.”


Even if the Second Amendment nullificationists were correct that the introductory clause overrides the main clause, they err in their hyperliteral reading of this initial clause.

When we see the word “press” in the First Amendment, we understand that it protects more than just the freedom to use literal printing presses. It obviously includes sharing ideas using tools that have the same purpose as the press, such as fountain pens, typewriters, and Web sites. If a newspaper abandoned printing presses entirely and published its articles exclusively online, “freedom of the press” would still protect the writing.

Likewise, the active liberty principle of the Second Amendment’s opening clause teaches us about more than just formal militias. It looks to the role of citizens in helping to carry out the government functions of a free state — particularly the essential governmental function of suppressing predatory violence.

Research by the Centers for Disease Control and Prevention has found that legally armed homeowners (of whom there are none in the District) use firearms to drive burglars away from their homes hundreds of thousands of times a year.

Only about 13 percent of American burglaries are perpetrated against occupied homes (known as “hot burglary”), thanks to the burglars’ fear that residents might be armed. By contrast, the rate of hot burglaries is 45 percent to 50 percent in countries such as England and the Netherlands, where defensive gun ownership is forbidden or heavily discouraged.

Thwarting or deterring a home invasion obviously is beneficial for the individual family, but it also benefits the people as a whole. Drastically reducing the number of hot burglaries reduces the number of emergency calls to which police must respond, giving them more resources for other programs.

A militiaman in 1791 did much more than protect himself alone, and the Founders understood that collective benefit. By defending communities, militias protected people not in the militia, such as the elderly, women, and children.

Likewise, modern Americans who exercise Second Amendment rights confer benefits on the whole community. About half of all American homes contain a firearm. Burglars, however, do not know which half, so they must try to avoid all occupied homes.

One could say that the families without guns are free-riders on the benefits from families with guns. Or one could say that the Second Amendment’s opening clause envisioned that the security benefits of keeping arms would inure to the whole community.


This view has strong historical roots. The leading constitutional commentators of the early Republic, St. George Tucker and William Rawle, described the Second Amendment as guaranteeing a right to own guns for individual defense and for community security.

Likewise, the Reconstruction Congress, when passing the Freedmen’s Bureau Act and, later, the 14th Amendment, explicitly affirmed the right of former slaves to own guns in their own homes for protection against the likes of the Ku Klux Klan. This was important for the freedmen personally and also for preventing the Klan from destroying the right of freedmen to participate in the political process.

Later, during the 1950s and 1960s, many civil rights activists in the South (including Eleanor Roosevelt, on a speaking tour in Tennessee) had guns to protect themselves while they campaigned against segregation laws and in favor of voting rights.

It is possible to imagine how the active liberty and negative liberty clauses of the Second Amendment might conflict. A law that required prospective gun owners to undergo training or take a test might advance the active liberty clause, while arguably infringing the negative liberty clause.

Yet in the D.C. case, the active liberty and negative liberty provisions are in perfect harmony. The D.C. bans on functional firearms are contrary to the purposes of both clauses of the Second Amendment. The D.C. statutes eliminate both the personal and community benefits from firearm ownership in the home. Under both the active and negative concepts of liberty discussed in Breyer’s book, these D.C. statutes should be struck down.

Briefs Filed in D.C. Gun Ban Case

January 19, 2008

As the date for Supreme Court argument in District of Columbia v. Heller approaches, the filing of briefs has begun.  The District filed its brief last week.  In addition, various “amicus curiae” (friend of the court) briefs were filed with the court. 

Department of Justice Brief 
Gun owners are understandably dismayed about the brief filed by the Department of Justice (DOJ). 

Hoping Something Will Stick To The Wall: Gun Ban Groups’ Briefs 
Nearly two dozen briefs have been filed with the U.S. Supreme Court by individuals and groups supporting D.C.’s bans on handguns, having a gun assembled within the home, and carrying a gun within the home. 

Outrage of the Week:  Are You A Bigot? This week’s Outrage comes from the Anti-Defamation League (ADL), which filed a friend of the court brief in the District of Columbia v. Heller case in support of keeping Washington, D.C.’s draconian gun ban on the books.  According to a recent ADL release (, “The League urged the Court to ensure that states retain the ability to keep guns out of the hands of ‘violent bigots.'”   

Leading Democratic Candidates Call for Severe Restrictions on our Second Amendment Rights:  With the Presidential nominating season in full swing, trying to pin down the various candidates’ unequivocal stance on issues of import can often be difficult, if not impossible.  Amidst their political posturing and refining of positions at the recent Las Vegas Caucus, Senator Hillary Clinton (D-NY), Senator Barack Obama (D-IL), and former Senator John Edwards (D-NC), were asked a series of questions about the gun issue.  All called for severe restrictions on our Second Amendment rights.   

To view a video of the exchange, please visit our NRA-Political Victory Fund website ( and click on the video feed in the center of the page.

“To secure these rights…”

December 17, 2007

Often, there are those that think that they are wiser than the Founders of this nation. They tend to be well educated, and think of themselves as the elite of society. They believe in freedom of expression. Just so long as it is in line with their thinking. Mark Alexander writes yet another fine piece about this in the Patriot Post. Well done Mark. It is reprinted here in the hope that it, and Mark, get even more exposure.

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.” —Alexander Hamilton


“To secure these rights…”

By Mark Alexander

Saturday, 15 December, is the 216th anniversary of the adoption of the Bill of Rights, the first Ten Amendments to our Constitution, as ratified in 1791.

The Bill of Rights was inspired by three remarkable documents: John Locke’s 1689 thesis, Two Treatises of Government, regarding the protection of “property” (in the Latin context, proprius, or one’s own “life, liberty and estate”); in part from the Virginia Declaration of Rights authored by George Mason in 1776 as part of that state’s Constitution; and, of course, in part from our Declaration of Independence authored by Thomas Jefferson.

James Madison proposed the Bill of Rights as amendments to our Constitution in 1789, but many of our Founders objected to listing the Bill of Rights at all, much less as “amendments.” Their rationale was that such rights might then be construed as malleable rather than unalienable, as amendable rather than “endowed by our Creator” as noted in the Constitution’s supreme guidance, the Declaration of Independence.

Alexander Hamilton argued this point in The Federalist Papers, the most comprehensive explication of our Constitution: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous… For why declare that things shall not be done which there is no power to do?” (Federalist No. 84)

George Mason was one of 55 who authored the U.S. Constitution, but one of 16 who refused to sign it because it did not adequately address limitations on what the central government had “no power to do.” He worked with Patrick Henry and Samuel Adams against the Constitution’s ratification for that reason.

As a result of Mason’s insistence, ten limitations were put on the Federal Government by the first session of Congress, for the reasons outlined by the Bill of Rights Preamble: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution…”

Read in context, the Bill of Rights is both an affirmation of innate individual rights (as noted by Thomas Jefferson: “The God who gave us life gave us liberty at the same time…”), and a clear delineation on constraints upon the central government.

However, as Jefferson warned repeatedly, the greatest threat to such limitations on the central government was an unbridled judiciary: “Over the Judiciary department, the Constitution [has] deprived [the people] of their control… The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will… It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation… The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

In Federalist No. 81 Alexander Hamilton wrote, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”

That admonition notwithstanding, the federal judiciary has become “a despotic branch.”

Indeed, since the middle of the last century, judicial despots have grossly devitalized the Bill of Rights, asserting errantly that our Founders created a “Living Constitution” amendable by judicial diktat.

For example, the Leftjudiciary has “interpreted” the First Amendment as placing all manner of constraint upon the exercise of religion by way of the so-called “establishment clause” and based on the phony “Wall of Separation” argument. At the same time, the courts have asserted that all manner of expression constitutes “speech.”

The judiciary and legislatures have undermined the strength of the Second Amendment, a right of which James Madison’s appointee, Justice Joseph Story, referred to as “…the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers…”

Equally derelict is the manner in which the Tenth Amendment has been eroded by judicial interpretation.

In Federalist No. 45, Madison outlines the clear limits on central government power established in the Constitution: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

Alexander Hamilton added in Federalist No. 81 “…the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

There was a very bloody War Between the States fought over offense to the Constitution’s assurance of States’ Rights.

All is not lost, however.

Sunday, 16 December, is the 234th anniversary of the Boston Tea Party (1773). The “radicals” from Marlborough, Massachusetts, who threw 342 chests of tea from a British East India Company ship into the Boston Harbor in protest of tyrannical rule, did so noting, “Death is more eligible than slavery. A free-born people are not required by the religion of Christ to submit to tyranny, but may make use of such power as God has given them to recover and support their… liberties.”

Three years later, this rebellion had grown to such extent that our Founders were willing to give up their fortunes and lives, attaching their signatures to a document that declared, “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.”

Judicial and political despots, take note

The Triumph of Liberty

December 8, 2007

Ultimately the triumph of liberty depends on the dissemination of ideas on liberty. Such ideas cause people to reevaluate long-held notions as to the role of government in a free society. Ideas on liberty have the potential of transforming a society by awakening and arousing people to the genuine nature of freedom and its importance and benefits. “


Jacob G. Hornberger

In my not so damned humble opinion, President Bush could appoint a far worse person to the Supreme Court, than this man.

Blackwater members given IMMUNITY from shooting 17 Iraqi civilians « Mrs. Silence Dogood

October 30, 2007

Blackwater members given IMMUNITY from shooting 17 Iraqi civilians « Mrs. Silence Dogood

When you absolutely, positively, have to have the very best, Blackwater is the answer. That American General that got hit? Please note that it was not Blackwater International that was guarding him. It is in things like this that the Utilitarian comes out in me. As for the abuse of power question? Better judged by twelve than carried by six.

“Liberty is a word which, according as it is used, comprehends the most good and the most evil of any in the world. Justly understood it is sacred next to those which we appropriate in divine adoration; but in the mouths of some it means anything, which enervate a necessary government; excite a jealousy of the rulers who are our own choice, and keep society in confusion for want of a power sufficiently concentered to promote good.” —Oliver Ellsworth

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