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Justice Stevens’s Second Amendment Hokum


COME TO CHARLESTON! The Ron Paul Institute and The Future of Freedom Foundation are co-hosting a conference on U.S. foreign policy in Charleston, SC, on Sunday, April 29, from 1-5 pm. Speakers: Ron Paul, Dan McAdams, Richard Ebeling, and Jacob Hornberger, with special guest Congressman Mark Sanford. Details here.


Former U.S. Supreme Court Justice John Paul Stevens’s perspective on the Second Amendment reflects the warped and perverted view of people’s rights and the U.S. Constitution that has come to define both the left and the right.

In a New York Times op-ed entitled “Repeal the Second Amendment,” Stevens praised the thousands of student demonstrators who have been protesting “the mass killings of schoolchildren and others in our society.” While Stevens supports various gun-reform measures, he said the way to achieve “more effective and lasting reform” would be to repeal the Second Amendment.

Like so many progressives and conservatives, Stevens obviously believes that the right of people to keep and bear arms comes from the Second Amendment. Repeal the Second Amendment, the argument goes, and — Voila! — the right to own guns disappears.

With all due respect to a lawyer who has served on the U.S. Supreme Court, that view of rights and the Constitution is just plain wrongheaded.  But unfortunately it is a view that is ingrained in students in public (i.e., government) schools, in state-supported colleges and universities, and yes, in all those government-approved law schools that the state requires people to attend as a condition of getting a government license to practice law.

What’s the problem with Justice Stevens’s perspective?

Our right to own guns doesn’t come from the Second Amendment. Our rights don’t come from the Bill of Rights. They don’t come from the Constitution. And they don’t come from the government. Our rights preexist the government, the Constitution, and the Bill of Rights. They are inherent in us. They are endowed in us by nature and by God.

Thus, we have the right of free speech whether or not there is a government, a constitution, and a bill of rights. The same goes for religious liberty. The same goes for the right to own guns or any other property. Indeed, as Thomas Jefferson pointed out in the Declaration of Independence, our general rights of life, liberty, and the pursuit of happiness do not come from government but instead, are natural, God-given rights that preexist government.

What is the purpose of government? As the Declaration of Independence also points out, the purpose of government is to protect the exercise of people’s natural, God-given, preexisting rights.

Such being the case, how can a repeal of the Second Amendment operate to destroy a right that exists independently of the Second Amendment?

Let’s review how the federal government came into existence. After the break from England, the former colonies of the British Empire formed into states — sovereign and independent states. Rather than having each state operate as an independent nation, however, which could have been done, the states came together in a confederation. That’s what the Articles of Confederation were for. As part of that confederation, the states called into existence a federal government, but one with very few and weak powers. In fact, I’ll bet that most Americans today, including those protesting students, don’t know that the federal government under the Articles of Confederation didn’t even have the power to tax people. Imagine that: No income tax. No tax at all. No power to levy a tax.

The United States operated under that system of government for 13 years, which proved beyond any doubt that it is possible for a nation to exist with a central government that has no power to tax and with hardly any other powers.

Why did Americans want a government with a very few powers? Why didn’t they instead bring into existence an all-powerful welfare-warfare state type of government that Americans today believe in and have adopted?

Because they didn’t want an all-powerful welfare-warfare state type of government! That’s because they were convinced that that type of government would end up destroying their own freedom, by engaging in things like out of control spending and debt, forever wars, assassination, indefinite detention, torture, surveillance, gun seizures, censorship, and oppression — i.e., all the things that the British government believed in, advocated, and implemented — the government from which they had seceded in 1776.

After 13 years of operating under the Articles of Confederation, problems arose, which were going to be addressed at the Constitutional Convention in Philadelphia. Everyone naturally assumed that the Convention would propose modifications to the Articles that would address and resolve those problems.

Instead, the attendees at the Constitutional Convention came out with an entirely different idea — to adopt a new type of national government, one that had, among other things, the power to tax.

Americans were not enthusiastic about the idea. Why? Because they were convinced that this new government would end up destroying their freedom and prosperity, just as their previous government — the British government — had done.

Take a close look at language of the Bill of Rights. It really shouldn’t have been called a Bill of Rights at all. That’s because it isn’t a Bill of Rights. It’s a Bill of Prohibitions. The language is carefully drawn. The First and Second Amendments do not grant rights. Instead, they prohibit the federal government from destroying rights, rights that preexist the government.

Look carefully at the Fourth, Fifth, Sixth, and Eight Amendments. Those deal with restrictions on the power of the federal government to torture, assassinate, and incarcerate people. The amendments interfere with the power of the federal government to destroy people’s liberty.

Now, ask yourself a question: What was the point of enacting those amendments? If the government is “us,” as statists often argue, why was it deemed necessary to prohibit “us” from doing things that “we” would never do to ourselves?

As you examine those amendments, it will finally hit you: That’s why Americans were reticent about bringing into existence a new type of federal government. They were convinced that this new federal government would end up doing the things that are proscribed in the Bill of Rights.

To satisfy their concerns, proponents of the Constitution essentially said, “Look, we are not calling into existence a welfare-warfare state type of government, like the British government is. Instead, this is a government of few, limited powers, not significantly different from the government under the Articles of Confederation. Those powers are enumerated in the Constitution itself. If a power isn’t enumerated, it can’t be exercised. You have nothing to be concerned about.”

Thus, given that understanding, there really wasn’t any need for a Bill of Rights at all. That’s because the Constitution didn’t grant the federal government with the power to regulate or ban ownership of guns, just as it didn’t give the federal government the power to censor speech or compel church attendance. It also didn’t give the federal government the power to assassinate people, or torture them, or jail them without trial.

So, why then was the Bill of Rights enacted? Because even though the Constitution was calling into existence a government of few, enumerated powers, our American ancestors still didn’t trust what was happening. To get their concerns across, they demanded the enactment of the Bill of Rights. They were essentially saying: “This government that is being called into existence is expressly prohibited from destroying our freedom.”

In his op-ed, Justice Stevens calls that concern “a relic of the 18th century.”

Really? A relic? Of the 18th century?

Maybe he hasn’t heard of the IRS. Or the DEA. Or the round-up and incarceration of Japanese Americans. Or MKULTRA. Or the U.S. government’s program of state-sponsored assassinations, including of American citizens. Or torture, including of American citizens. Or indefinite detention. Or military tribunals for criminal offenses. Or the use of torture to acquire confessions. Or the use of testimony acquired by torture. Or the use of hearsay evidence. Or denial of trial by jury. Or the denial of speedy trial. Or the U.S. installation or support of brutal tyrannical regimes, like those in Egypt, Chile, Iran, Guatemala, Iraq, and Afghanistan.

Stevens is naïve to the extreme. The reason for his extreme naiveté  is that he knows that he and other elites of his ilk would never have to suffer the ravages of an out-of-control welfare-warfare state type of government. It’s only the non-elites who suffer such ravages, and who cares about them? Just ask the descendants of Japanese-Americans. Just ask the families of those who were kidnapped, tortured, raped, abused, or executed by Pinochet after U.S. officials installed him into power and then supported him. Just ask people in Egypt today how U.S. armaments are reinforcing the tyranny under which they are suffering. Just ask the Iranian families who were victimized under the Shah, after the CIA installed him into power and then trained and supported his national-security state goons in the arts of torture, indefinite detention, and oppression.

No, Justice Stevens. Repealing the Second Amendment would not destroy our right to protect ourselves from tyranny through gun ownership. That’s because our right to own guns and to protect ourselves from tyranny preexists the federal government and the Bill of Rights. As the Declaration of Independence points out, our rights come from Nature and Nature’s God, not from the Bill of Rights, not from the Constitution, and not from the federal government.

And don’t forget: As the Declaration also points out, it is our right — the right of the people — to alter or even abolish the federal government when it becomes destructive of our rights and to institute new government that protects our rights instead.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.