Democracy and the Second Amendment (July 2010)
The Supreme Court decision on Heller reaffirming the individual right to keep and bear arms is an historic victory for the republican cause under the Presidency of George W. Bush. There were however two significant limitations in the defence of the second amendment which can be addressed. The first concerns the use of violence by unaccountable conspiratorial methods for political purposes. The second concerns the inconsistent political philosophical basis of the defence. These limitations are interconnected.
Violent crime arising from political conspiracy is not specifically or adequately accounted for by Heller’s advocates, the court judgement, the scholarly works cited in the case, or the various amici curiae submissions. Yet probably the most important need for self defence is of those persons willing to act against government wrongdoing even at risk to their own lives. Constitutionally the unconditional, individual right to keep and bear arms for self defence is of most decisive significance in those instances where government is unable to defeat its critics by argument or silence them by means of bribery, blackmail, or fraudulent prosecution (e.g. for fear of exposure through trial by jury) such that the temptation of those in power to resort to some form of plausibly deniable terrorism is at its greatest.
The arguments provided to support Heller rest upon inconsistent, even self contradictory political philosophical premises. One example of this is the contrasting approaches taken in the two main scholarly works cited in the judgement by Justice Clarence Thomas: That Every Man be Armed, by Stephen P. Halbrook; To Keep and Bear Arms, by Joyce Lee Malcolm. While Halbrook pays some attention to the origins and relevance of the right to bear arms in the ancient world, Malcolm effectively dismisses the claim by both William Blackstone and the originating advocates of the English Bill of Rights that such a right is both ‘ancient and indubitable’ arguing instead that keeping and bearing arms was an imposed duty in the premodern world and only became a ‘right’ in consequence of the factional differences arising out of the English revolutions.
These two main limitations in the Heller case are interconnected since it is only by taking adequate account of natural law and common sense realism (many aspects of which are now compatible with modern evolutionary psychology) that the second amendment can be properly defended.
The underlying context of the irregular and inconsistent approach to defense of the second amendment is that the political philosophical basis upon which the Bill of Rights was won by American revolutionary radicalism (natural law and the closely related British tradition of common sense realism) has never been upheld either by conservatism or by the predominant factions of European radicalism. Since the American revolution there has been little or no comparative analysis of the relation between common sense realism and radicalism. This consideration is generally absent from both the ‘originalist’ and ‘interpretivist’ modes of constitutional analysis, which, respectively, are associated with modern conservative and radical views. An historical account of this relation can therefore help improve understanding and defence of the second amendment. What follows is a concisely comprehensive, comparative analysis of such development save for the unknown scale of conspiratorial influences.