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Protecting People Against "Gun Control"

RGN Montpelier '07My recent address in Grand Junction on the Colorado gun control laws has received widespread notice. This is particularly so of the part pointing out that the same arguments used by the legislative majority for gun control could be used to restrict other constitutional rights, such as free speech and sexual choice.

I’ve reproduced the entire text below:

Rob Natelson Address to Pro Second Amendment Committee
March 23, 2013

My talk tonight will address three different, but related, topics.

First, I’ll speak about the right to keep and bear arms as that right is enshrined in both the United States and Colorado Constitutions. I will be speaking about what those rights actually mean as the constitution-writers understood them, not as the courts have distorted them. I’ll discuss why those rights are there, what their scope is, and what it means to infringe them.

Second, I’m going to speak about the politicians in the Colorado legislature who voted for bills designed to control and harass Colorado gun owners. I’ll say something about the convoluted thinking of those politicians, and what I think really motivates them.

Finally, I will suggest a way citizens can respond to what those politicians have done.

* * * *

The Second Amendment of the United States Constitution states that:

“A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

What does this amendment really mean?

In recent years, people offering answers to that question have often focused on the militia part of  the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .”

But in my view, that’s the wrong place to begin. The militia phrase is what lawyers call a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed.”

Notice two things about the phrase I just read.  First, it refers to “THE right of the people to keep and bear arms.” Like “the freedom of speech” and “the freedom of the press” in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee.

Another thing this phrase—THE right to keep and bear arms—implies is that the Founders knew the scope of the right. In other words, they understood what it did and didn’t include. We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out.

I’ll say more in a moment about what is and isn’t encompassed by the Second Amendment.

So—this phrase refers to “THE right to keep and bear arms.” It also says that this right “shall not be infringed.” What does that mean? On this subject, also, there’s no need to speculate. Because 18th century dictionaries tell us exactly what “infringe” meant.

In this context, the word “infringe” meant to reduce or impair in any way. In other words, government shall not reduce or impair in any way “THE right to keep and bear arms.” Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.”

On the other hand, the Founding-Era record also tells us that not every use of every weapon is part of the right that cannot be infringed. So let’s look now at what the right does and doesn’t include.

History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.

The first purpose—providing a state military balance to federal power—is more important in assessing federal gun control laws than in assessing state gun control laws. Since I’m focusing on the Colorado laws this evening, I’ll discuss here the other three principles. We begin with the right of self-defense.

In order to enable people to defend themselves, the right to keep and bear arms has to include weapons sufficient for that purpose. Which weapons are sufficient for the purpose of self-defense will vary according to changes in technology and in society.

Advocates of gun control tend to be the same sort of people who argue in favor of the idea of a “living Constitution.” Of course, usually when people argue for a “living Constitution,” what they really want is a dead Constitution. Specifically, they want to eliminate almost every constitutional limit on the power of federal politicians and allow those politicians to control almost everything except abortion, which they want the politicians to subsidize.

Yet some of the people who think the Constitution should be manipulated to meet allegedly new conditions take a very different tack when applying the Second Amendment. To them, the Second Amendment, if it protects individual rights at all, should be limited to militia duty with muskets and flintlocks.

But if the Second Amendment is based partly on a right to personal self-defense—and it is—then this narrow view is wrong.  The Second Amendment cannot be limited to muskets and flintlocks any more than the power of Congress to regulate interstate commerce can be limited to trade in sailing ships and horse-drawn wagons.  Even an old-fashioned constitutionalist like myself believes that Congress can use the Commerce Power to regulate railroads and air travel, although those forms of travel did not exist when the Constitution was ratified. Otherwise, the Commerce Power would mean nothing. For the same reason, the right to keep and bear arms must include the free use of modern technology appropriate for self-defense.

It is true that when the Second Amendment was ratified, a standard capacity 30 round magazine would not be necessary for personal self-defense. But now, when when mass murderers and terrorists have modern weapons, citizens need standard capacity magazines for self defense. They also need handguns and a range of other weapons. That is one reason the Second Amendment protects their use today.

In addition to self-defense, the Second Amendment was adopted to enable citizens to defend against tyrants foreign and domestic. At this point it becomes helpful to turn to the Second Amendment’s preamble: The Amendment seeks a “well regulated militia.” In 18th century language, “a well regulated militia” meant a “well-trained militia.”

The “militia” that the Second Amendment says should be well trained consists of all able bodied men. Article XVII, Section 1 of the Colorado Constitution expresses this well: It says, “The militia of the state shall consist of all able-bodied male residents of the state between the ages of eighteen and forty-five years; except, such persons as may be exempted by the laws of the United States, or of the state.” That was pretty much the American Founders’ view of the matter. Read Madison’s language in Number 46 of The Federalist Papers, and you’ll see what I mean. It is pretty much the understanding of our fathers and grandfathers when gun use and safety was commonly taught in public school.

So according to the Second Amendment, we want all men of military age well trained in the use of weapons. And why is this? Because, as the preamble tells us, this is “necessary for the security of a free state.” By “a free state,” the Constitution means “a free country.”

So all men of military age should be well-trained in weapons so that America survives as a free country.

Well, what weapons? Obviously, the muskets and single-shot rifles in use when the Second Amendment was adopted are no longer sufficient to do the job. Today the Second Amendment protects a range of weapons appropriate for citizen militias resisting foreign invaders and tyrannical politicians.

Now at this point someone favoring gun control always comes up with the line, “Well, does that mean that citizens have the right to hoard naval artillery and atomic bombs?”  And the answer is “No, the Second Amendment doesn’t encompass naval artillery or atomic bombs any more than the First Amendment includes falsely shouting ‘fire’ in a crowded theater.” The language and purposes of the Second Amendment, as well as its history, tell us what it excludes as well as what it includes.  Naval artillery and atomic bombs are not customary for personal self-defense and they never have been militia weapons used for repelling foreign invaders and domestic tyrants. In fact, the Second Amendment itself refers to the right to bear arms—that is, to carry arms—referring to weapons that normally are carried by a human being.

Let’s focus for a minute on another purpose of the Second Amendment: protecting against domestic tyrants. We tend not to discuss this purpose much, but it might possibly have some relevance to the authoritarian types who currently dominate the Colorado legislature.

Politicians in America right now tend to fall into either of two groups. There are those who generally favor freedom but also strongly support law enforcement. And there are those who are skeptical toward law enforcement but nevertheless seek to expand the power of government in many areas of life, and particularly in economic affairs. It’s not intuitively obvious which group should be for gun control.  You might think that those who favor economic freedom might be for gun control as a way of backing law enforcement. Or you might think those who favor more economic regulation might be against gun control because they are skeptical about law enforcement and might not want to give the police a monopoly over weapons.

But we all know what the situation is in real life: In real life, the biggest advocates of gun control are precisely those who want to lord it over the rest of us in nearly every other aspect of life.

Why is this? Well, reflect on the fact that the modern era of gun control began with the federal Gun Control Act of 1968. This law—if an unconstitutional act can be called a “law”—was passed in the wake of some ghastly political assassinations. I don’t think this is a coincidence. It’s reasonable to assume that those who wish to fasten more and more fetters on the productive people of American society might consider that one day they might go too far, and face physical and armed opposition.

Indeed, just the fact that many citizens are armed may have a moderating influence on authoritarian politicians.

The author of the first draft of the Second Amendment was James Madison. Madison’s favorite book of political theory was Aristotle’s Politics. Several times in that work Aristotle makes the point that all citizens should have weapons, and that only those with weapons should be citizens. Otherwise, he wrote, those that are disarmed are the slaves of those who are armed.

The point was made another way by Jean Louis DeLolme, a Swiss jurist. DeLolme wrote a book on the English constitution that we know Madison read, and that was a source for other American Founders as well. In speaking of the need for an armed citizenry, DeLolme wrote:

The Power of the People is not when they strike, but when they keep in awe. It is when they can overthrow every thing, that they never need to move; and Manlius [a Roman consul] included all in four words, when he said to the People of Rome, Ostendite bellum, pacem habebitis. [Look toward war, and you shall have peace].

The widespread ownership of firearms, therefore, helps to preserve freedom, usually without the need for armed violence. When politicians limit or harass gun ownership, the threat is far wider than the threat to guns alone. By reducing the number of citizens who are armed, gun control emboldens the authoritarian politicians to control everything else we do, thereby imperiling freedom generally.

And this brings us specifically to the majority that now controls the state legislature.

Certainly, their political views are pretty skewed. Consider one example.

The same politicians who voted for gun control were by and large the politicians who voted for civil unions. If you have read that bill, you know it goes far beyond civil unions: It is really a same-sex marriage bill that is labeled a civil union measure in an effort to evade the marriage rules of the Colorado Constitution.

Now, one basis for the civil unions bill is the U.S. Supreme Court’s holdings that the right to engage in sex outside of marriage, both heterosexual and homosexual, is a federal constitutional right. The Founders would have been astonished at this for a number of reasons. But that is what the modern Supreme Court says.

Now, ask yourself: What would be the reaction of the Colorado legislature’s majority to a proposal requiring a background check before anyone could exercise the constitutional right of non-marital sex? What would be the reaction to a bill saying that the eager couple had to pay the fee for that background check? What would be the reaction of Speaker Ferrandino or Senate President Morse to a bill stating that the eager couple was limited to “15 rounds,” so to speak?

No doubt those legislative leaders would explode in outrage. How can you limit a constitutional right that way?” they’d sputter.

“Well,” we might respond. “You’re doing just that with an enumerated constitutional right—the Second Amendment.”

When they stopped sputtering, they might argue that, well, “Guns are different. Fifteen thousand Americans die from gun violence each year.”

“Are they?” We might say. “In fact, 17,000 Americans die from AIDS each year, primarily as a result of non-marital sex—and that figure doesn’t even count other sexually-transmitted diseases. So if you can impose background checks and the like on our right to keep and bear arms, then we can impose similar restrictions on your right to bare other parts of your body.”

The same sort of argument that applies to the unenumerated right of non-marital sex and the enumerated right to keep and bear arms also applies to the enumerated rights of freedom of speech and freedom of the press. As a child of the 1960s and 70s, I remember how free use of the First Amendment allowed protesters to pressure the federal government into some fatal mistakes in Southeast Asia—mistakes that, as widely predicted, led inevitably to a bloodbath in which 2 million people died. You see, free speech can be very dangerous.

But this is emphatically NOT an argument for government restrictions on free speech—nor is an argument for government restrictions on non-marital sex. As the courts properly hold, the state and federal constitutions protect even rights with potentially-dangerous consequences. For example, the courts hold that the government generally may NOT impose prior restraints on a person seeking to exercise First Amendment rights.

Yet the worthies who run the Colorado legislature think nothing of imposing burdensome prior restraints on the entirely innocent enjoyment of Second Amendment rights.

I think we can explain the difference partly because authoritarians understand, at some level, that disarmed citizens are easier to push around than armed citizens.

At last, we come to the question: What we do now?

It is obvious that every politician who supported these gun control bills must be opposed for re-election. It also goes without saying that these bills must be challenged in court. And I’m proud to say that my own organization, the Independence Institute, will be taking the lead in doing just that. And in a few cases recall efforts against selected politicians may be a good idea. But we need a wider public response as well, and to explain what it is I’d like to tell you of an event from my own life.

In 1985, I left Colorado for job reasons and a shortly thereafter found myself working as a law professor in Montana.

Now, Montana has a public image—and a self-image—as a place of rugged individualism. And this image is accurate in a few areas of life, such as gun rights. But when I moved there I was surprised to learn that in many other areas, this was not true. In political affairs particularly, Montana traditionally has suffered from an ailment that used to be called “prairie socialism.” This was reflected in the fact that Montana had, proportionately, one of the largest governments and some of the highest taxes in the United States.

It has been demonstrated repeatedly that big government and high taxes are bad for an economy. It is not surprising, therefore, that Montana was quite poor. Around that time, the average Montana salary fell to the lowest of any state—below even Mississippi—and state government was in constant budgetary distress. The usual way of dealing with the distress was to raise taxes, which of course then hurt the economy more, leading to further deficits.

In 1993 the state legislature and governor decided to respond to yet another purported deficit in the usual way—by raising taxes. And this time they really went whole hog. They raised payroll taxes, gasoline taxes, excise taxes, resort taxes—all by huge amounts. They also promoted a massive new sales tax. The people would get to vote on the sales tax, but the politicians stacked the deck by passing a law saying that if the people did not vote for the sales tax then state income taxes would automatically shoot up instead.

In other words, the politicians in Montana were guilty of the same sort of overreach the politicians in Colorado are presently guilty of.

Now, the Montana Constitution contains a provision that allows the people to circulate a petition to force a public vote on almost any bill the legislature passes. If enough people sign the petition, the bill is suspended, and if they people vote it down, it never goes into effect. A few other citizens and I formed an organization called Montanans for Better Government, of which I became chairman. We informed citizens of the many ways in which the size of government could be cut and we spoke of the many advantages of doing so. We pointed out that some of the state’s own numbers showed the claimed deficit was being exaggerated to frighten people. We campaigned against the proposed sales tax and announced that if voters rejected it we’d circulate a referendum petition to put the income tax hike on the ballot so the people could vote that down, too.

The political establishment, the media, and most of my fellow law professors were absolutely furious. I don’t have time tonight to tell you the story of everything they did, or tried to do, to me and my family. But our efforts were overwhelmingly successful. We were able to defeat the new sales tax by a margin of 3-1. Then we got a record number of signers for our petition to suspend the income tax hike and send it to vote. We used only volunteer petition circulators, by the way—not paid ones. We stopped the income tax hike and when the people got a chance to vote on it they turned it down by 3-1.

And shortly after our petition stopped the income tax hike, the state government number-crunchers admitted that the fiscal crisis had been exaggerated and the government really didn’t need the extra money after all.

These events happened exactly 20 years ago. Our campaign defeated two tax increases, but it also had a much greater effect: It sent a message to Montana politicians that they still have not forgotten: They have not passed a major tax increase since then—in fact, they’ve cut taxes—and the state is much more prosperous as a result.

In Colorado, our state constitution also includes a provision that allows the people to halt and review bills in a referendum. The problem here, though, is that the Colorado constitution adds that the referendum doesn’t apply to laws that are “necessary for the immediate preservation of the public peace, health, or safety.”

So to cancel the people’s referendum right, the Colorado legislature now tacks onto almost every bill a statement that the bill is “necessary for the immediate preservation of the public peace, health, or safety.” This isn’t necessarily the last word, but it means that if you try to send a law to referendum you will have to go to court. That’s something Coloradans need to change.

But we do have another option: a voter initiative. Through an initiative, we can amend the state constitution to protect citizens against attacks on the Second Amendment. Such an initiative could be fairly simple: It could add a short clarifying paragraph to Article II, Section 13, the state constitution’s right to bear arms. That paragraph could explain that the Colorado right includes freedom to buy, sell, and own standard-sized magazines . . .and freedom to purchase, sell, and own weapons without government harassment.

Right now, at least one committee has been formed to place such an initiative on the ballot next year. The committee I’m involved with is called Citizens for a Safe Colorado. If you are interested in helping, I have a sheet where you can sign up.

Tonight I’ve discussed the meaning of the constitutional right to keep and bear arms, the attack on that right by a majority in the state legislature, and ways in which I believe we can respond effectively.

I’ve observed that what is at stake here is more than the right to keep and bear arms, but also an important safeguard against grasping politicians. But let me submit that the stakes are even wider than that: At risk is the overall well being of Colorado citizens, and future citizens.

In 2009, economists at George Mason University in Virginia surveyed the states to see how each ranked on various measures of personal and economic freedom. Their study concluded that Colorado was the second freest state in the United States. Colorado trailed only New Hampshire in the respect given to the liberty of its citizens.

There is no question that this level of freedom is an important reason why talented and diligent people are attracted to Colorado. They come for freedom itself, and for the healthy economy and social climate that freedom fosters.

The authoritarians in the current state legislature are, obviously, threatening that freedom—and by doing so they threaten the economic and personal well-being of Coloradans and the future of Colorado children. Resisting and reversing what those politicians have done is not just about protecting the right to keep and bear arms. It is an obligation to our fellow citizens. It is a moral imperative toward future generations.

I have no doubt we will rise to the challenge.

Rob Natelson