Ancient Right

It is against this background that second amendment rights can best be defended upon the most durable foundation. The two significant and interconnected limitations in the defence of the second amendment cited earlier can accordingly be addressed on this understanding. The claim that the English right to bear arms is not both ‘ancient and indubitable’ because before the 1689 Bill it was merely a duty is of course a clear step towards relativism in political development. Such a step in defiance of authoritative testimony can only be properly warranted on the grounds that full account has been made of the omissions and weaknesses of contemporary social analysis most especially in regard to their inferior relation to the philosophical perspective and understanding of the founders outlined above. The most important problem in the social sciences in regard to defence of the Bill of Rights is the ‘dictatorship of relativism’ that has been promoted in a one sided and narrowly partisan manner while at the same time the original understanding of American revolutionary radicalism at the level of political philosophy has been effectively dismissed or ignored. The social sciences are almost entirely void of analysis based on the methods of common sense realism. This is unacceptable and militates against further concessions to relativism and interpretivism in constitutional analysis which are not fully supported by evidence and argument.

Joyce Lee Malcolm’s attempt to restrict the existence of the right to bear arms to the last three centuries is neither sufficiently well argued nor adequately supported by the evidence. She makes no reference to the philosophical context of Blackstone’s understanding or its relation to subsequent developments in this field. The empirical evidence for her claim is similarly inadequate. The fact that there is no parliamentary act or royal declaration prior to 1689 which explicitly upholds a ‘right’ to bear arms does not necessarily mean that no such right existed within the broader realm of English common sense understanding. Much of common law is not recorded so given the testimony of the 1689 Bill advocates and Blackstone’s account it is surely safer to err on the side of caution in such matters.

This becomes especially apparent when greater consideration of such possibilities is taken more fully into account. Though relativism frequently assumes that natural rights and law have long been superceded in their entirety by postmodernist theory, a more sober approach must recognize the speciousness of such claims. The main device employed by relativism in such endeavours is that of selective criticism: by picking out various dogmas and blunders attributable in some way to the principles of natural law, relativism can thereafter claim credit for their correction. A less selective approach however should account for the continuing strengths which lie at the heart of natural law, not merely the peripheral errors that have been uttered in its name. Locke’s first law of nature merely grants appropriate status to the most powerful instinct of all life – to survive. This can be interpreted as a ‘god given’ right or as an unavoidable requirement of ‘the selfish gene’ – in either case the basic presupposition of natural law that the instinct for self preservation is a stable attribute of the human condition which remains a preeminent determinant of cultural norms in all territories and all ages remains valid. Existing evidence indicates that in the last million years of human life the freedom to bear arms has only been abolished in the tyrannies of large scale urban civilization. If the 1689 bill was restoring an ancient and indubitable right it was one of much greater age and duration than its original advocates and William Blackstone alike imagined. Reason suggests that those societies which are more consensual in organisation will be more likely to grant broad based assent to the right to self defence. Aristocracies in which government is exercised upon a more tyrannical foundation are more likely to control the ownership, manufacture and use of arms. These simple and clearly interconnected distinctions were fully manifest in the relation between English and French government for over 500 years.

That the Supreme Court sees fit to cite as one of the two most scholarly works of recent times on the second amendment a book based on the postulate that the advocates of the English Bill of Rights were wrong to designate the right to bear arms as ‘ancient and indubitable’ says more about this juryless institution condemned from the outset as aristocratic and dangerous by George Mason than it does about the second amendment. That such an authoritatively established tenet of British and American law can be so easily challenged in print with the implicit approval of the US Supreme Court demonstrates how far removed this institution has become in its relation to the founding principles of the republic, and how thorough and ubiquitous the ‘dictatorship of relativism’ has become within the corridors and ‘authoritative resources’ of power.

Although therefore the Heller decision ruled in favour of the individual right to bear arms it remains the case that such support still rests upon arguments which are insufficiently developed regarding the full merit and principles of natural law and common sense realism espoused by the founders. This found reflection in the fact that although much evidence was furnished to the court to defend gun ownership rights in their relation to protection from crime in which reference to Blackstone was invoked to clarify the individual and longstanding nature of such rights, defence of the individual nature of this right in its relation to the security of a free state was not fully developed. Heller’s supporters deserve praise for presenting well founded arguments to oppose the fiction launched by antigun forces that the second amendment relating to the security of a free state was merely a ‘collective’ right which could only be exercised by state forces. This lie was demolished quite effectively merely by making clear that the second amendment empowered citizens to form a well regulated people’s militia if necessary without federal or state authorisation in order to defend the American republic against both foreign invasion and domestic subversion, including most especially by those in power. In this context the right to bear arms was affirmed as being held unselectively by the people as a whole, and therefore an individual right.

There are therefore incorporated in the Heller decision two main reasons why second amendment rights are individual in nature: first, because it was the intent of the founders that these rights be regarded as natural in character in accordance with longstanding English precedent in order to provide citizens with the means to defend themselves against crime. Second, because a well regulated militia comprised of volunteers drawn from the people as a whole is necessary for the security of a free state.

There is however a third main reason why second amendment rights must be individual in nature: so that citizens of a free state may defend themselves against the use of violence by unaccountable conspiratorial methods for political purposes. At first sight it may appear this reason for the individual nature of the right to bear arms has already been implicitly included in the right of citizens to defend themselves against ‘ordinary criminals.’ However further examination shows this not to be the case. Given the Supreme Court’s view that the individual nature of second amendment rights are consonant with the recently invented ‘American concept of ordered liberty’ it could, for example, at some later stage when crime rates have changed significantly (either higher or lower), be argued that a new balancing of order and liberty be undertaken such that consideration for the individual liberty to bear arms be outweighed by the benefit which increased order might bring.

This argument could be used against the right of individuals to defend themselves against crime, since this right only indirectly serves to prevent tyranny because in consequence it enables citizens to defend themselves against politically motivated crime directed by those in power. Crime in and of itself is not tyranny. Tyrannies can control crime at least as well, and indeed, as the Sicilian Mafia know full well, rather better than free states. It is argued by those who wish to increase government power that abolishing the right to bear arms will better control crime. Ultimately as protection against ‘ordinary criminals’ alone this argument is actually in that sense superior to the claim that the individual right to bear arms can help control crime. What tyrannies cannot abide however is the right of those opposed to them to free speech, assembly, and of course, arms. The ‘ordered liberty’ argument just mentioned could not be used to justify abolition of the right to self defence against the use of violence by unaccountable conspiratorial methods for political purposes in a free state because to do so is to allow freedom of speech and assembly to be subverted or even destroyed altogether by violence and intimidation with the tacit consent and collusion of those in power. It can therefore be seen that the right to self defence against ‘ordinary criminals’ will be seen as considerably more necessary to the security of a free state and more immune to any rebalancing of the ‘American concept of ordered liberty’ once it is more clearly and explicitly understood that this right also enables the right to self defence against politically motivated crime.

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