Other Thoughts

Understanding Guns in America: On Amendments and Ratification

January 23, 2013 by Brandy Vencel

[dropcap]W[/dropcap]hy can’t you just change the Constitution?” she asked. I admit that my first thought was, Why don’t we change the Bible as well? It just isn’t done! But then I found I needed to think about this because, of course, it is done, it has been done. The Constitution itself outlines the appropriate process for approving an amendment. It has been badly done, as in the case of Prohibition. And it has been wisely done, as in the case of the outlawing of slavery.

But what has never been done is to tamper with the Bill of Rights. We have made additional amendments, but we’ve never altered those original ten amendments.

Why?

To understand this we have to go back over the concept of natural rightsIf natural rights originate in the mind of the Creator, and if this means they are therefore unalterable, and if the bearing of arms is a natural right, then we have no right to alter the Second Amendment.

Period.

Charlotte Mason talks about this in regard to other parts of life. She says our thoughts are not our own, that we are free to think what we like:

Our thoughts are not our own and we are not free to think as we choose. The injunction, — “Choose ye this day,” applies to the thoughts which we allow ourselves to receive. Will is the one free agent of Mansoul, will alone may accept or reject; and will is therefore responsible for every intellectual problem which has proved too much for a man’s sanity or for his moral probity. We may not think what we please on shallow matters or profound. The instructed conscience and trained reason support the will in those things, little and great, by which men live.

In regard to child rearing, she says something similar. Our children are not our own, that we can do with them what we will. We do not have the right, for example, to ignore lying or to fill them up on candy, for this sort of mismanagement is against the law of God, which is our rightful governor when we are mothering our children.

In regard to teaching she says that we do not have the right to make undo play upon a child’s passions, to bribe him with prizes, to play upon his pride with praise, to play upon his desire to please with a manipulating personality, and so on. In other words, we do not have the right to transgress natural law in order to get our desired results.

Natural law, you see, always has attendant duties.

In the same vein, then, governments may not do what they will with their citizens. They do not have that right. Natural rights are the things which they are obligated to respect. Some governments don’t, of course, but the fact remains.

This is why I say that when we discuss the Second Amendment, we need to have a philosophical conversation rather than one which plays upon fear or appeals to statistics. We need to ask what is a natural right, if keeping and bearing arms is one, and if it is, we are obligated to respect that, regardless of our personal feelings about weapons.

 

The Bill of Rights: Foundation of the Constitution

I have heard more than one person comment lately that, in overturning the Second Amendment, our legislators or President {if he attempted to do this by Executive Order} would be overturning the Bill of Rights, and therefore the Constitution itself. I have also noticed that some people who overhear this sort of comment cannot comprehend how that might be. After all, it’s just an amendment, right? So … why not amend it again?

Even though the Second Amendment is considered an amendment, it is not an amendment in the usual sense. The Framers of the US Constitution were barely able to get the document ratified by the States on its own. What was required for a more unanimous agreement was a brief statement of natural rights.

All of the first ten “amendments” compose what we call the Bill of Rights. The Bill of Rights was a statement defending citizens from any infringement upon their natural rights of life, liberty, and property.

The Constitution was ratified prior to the ratification of the Bill of Rights by only the slimmest of slim votes. It was considered by many to be unacceptable on its own, even though, if you read it, the Constitution is brilliant and elegant all in its own right.

But it wasn’t enough.

Many people today read The Federalist Papers and are struck by how cautious the authors were. There is no Big Government to be found anywhere. The Federalist Papers, if you are not familiar with them, were written in order to persuade the American people to ratify the Constitution.

The Anti-Federalist Papers were written in response by the legendary Patrick Henry. In them, Henry argued against the ratification of the Constitution…because the government it proposed was too big and too powerful.

When I say the founding generation was concerned with tyranny, I am not joking. Their primary goal was to provide for the defense of natural rights.

The concern of the day was whether or not the Constitution proposed a government that consolidated too much power at the Federal level. This is what was being debated. The Bill of Rights made explicit what was implicit.

There was a huge concern at the time that in writing down — enumerating — natural rights, said natural rights were actually diminished in some way. In Federalist #84, for example, Alexander Hamilton argued against a Bill of Rights for this very reason:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

In the end, the solution was the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

After the passage of these ten amendments — the Bill of Rights — all at once, according to the process laid out in the Constitution, the other States were willing to ratify the Constitution, and so we became, truly, the United States.

Because so many states did not ratify the Constitution until the attachment of the Bill of Rights, many Americans believe we cannot have one without the other. Both documents were written around the same time, by the same people, with the same goal, which was of establishing an appropriate government for our people.

The Second Amendment wasn’t something tacked on at the end, a big afterthought {not to disparage afterthinking, of course}. It came right after freedom of religion, press, assembly, and speech, and before biggies like freedom from unreasonable search and seizure, or the right to a trial by jury. It was considered part and parcel of natural rights belonging to citizens of a free republic. Moreover, what Hamilton wrote about the press applies here as well: Why for instance, should it be said, that the right to bear arms shall not be infringed, when no power is given by which infringements may be imposed?

In other words, it was assumed all the way around that the government had zero authority to infringe upon the bearing of arms by the citizens of the Republic.


Read the Understanding Guns in America Series:
Introduction
The Noise that Made the Redcoats Run
Our Inherited Rights as Free Englishmen
Natural Rights and Legal Rights 
James Madison’s Angel Problem 
On Amendments and Ratification ⇦ you are here
Res Publica, the Nature of a Republic

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16 Comments

  • Reply Anonymous February 2, 2013 at 9:32 pm

    I was at the National Archives last week looking at the Declaration of Independence, Constitution and Bill of Right. The 2nd amendment was an afterthought. Originally the 4 Pillars of Freedom were religion, speech, assembly and press and are considered THE foundation of democracy. So, naturally, the founding fathers were most concerned about these 4 freedoms being the basis of democracy and the route to “life, liberty and the pursuit of happiness.”

  • Reply Rahime January 27, 2013 at 7:07 am

    Yeah, we’re definitely not zoned for cows. We can only have 5 chickens, and that’s it for “farm” animals.

  • Reply Rahime January 25, 2013 at 8:55 pm

    Yep, for Organic Pastures cow milk. It wasn’t at my regular store. I haven’t been there in a few months, so it could have gone up overall, but it’s usually $9 there.

    Definitely not feasible for our only milk. I need a cow.

    • Reply Brandy @ Afterthoughts January 25, 2013 at 9:57 pm

      A little Dexter would be cute. And they give about a gallon a day–they are small, almost like a full size goat, but they don’t need a friend the way a goat does…

      I am not zoned for cows, not even little Dexters…So Kinder goats it is! 🙂

  • Reply Rahime January 25, 2013 at 6:05 am

    I know for sure that my city wants to be (or possibly even sees itself as) a communist state…proof is in the pudding as they say.

    • Reply Brandy @ Afterthoughts January 25, 2013 at 6:15 am

      I think we all know that about your city. 😉

      As long as they can keep their raw milk, of course. 🙂

    • Reply Rahime January 25, 2013 at 8:47 am

      Yep. I am pretty happy with our raw milk…even if it was $10 the last time I bought a 1/2 gallon.

    • Reply Brandy @ Afterthoughts January 25, 2013 at 5:33 pm

      Was it really $10?

      I made a killing bartering raw goat milk for a while this summer! Apparently I should have asked for more… 🙂

  • Reply sara January 24, 2013 at 2:34 pm

    The idea that enumerating rights being in some way limiting them is interesting to me. I have recently moved to a rural area, an agricultural area, where the “right to farm” is a big deal. If you buy property around here, you have to sign documents saying that you understand that agriculture takes place here, with all its attendant sights, sounds and odors. I was thinking about this yesterday – does this explicit law mean that where it is not specified there is no right to farm? A long time ago you wrote something about zoning that was relevant, but I don’t know where to find it.

    BTW, I’ve always wondered about Patrick Henry. I think he must have been a little overwhelming in person. “Give me liberty, or give me death!” is a strong statement.

    • Reply Brandy @ Afterthoughts January 24, 2013 at 5:39 pm

      It really is interesting! I think that even though Henry was probably overreacting to the Bill of Rights, he was on to something in general.

      I thought that I liked zoning laws because of course I didn’t want a factory built right next to my house. In my mind, zoning laws were reasonable hedges around the assumption that private property belongs to the owner. In other words, I thought that the sentiment was, “You can do anything on your property except for x, y, and z”–x, y, and z all being so reasonable as to be obvious to decent people everywhere. But then I *read* our zoning laws. The phrasing is: “You can’t do anything except these few things we listed that we think you should be able to do.” Basically, it is fascism, where you don’t have to socialize private property, you can just legislate it into irrelevance.

      Ever since then I’ve been very hesitant about writing down laws. I really do think it breeds the sentiment that we need permission for everything, and there are so many that surely I’m breaking some daily without knowing it.

      re: Henry: I think he was very passionate! My husband likes to read that speech, or at least excerpts from it, on Independence Day. 🙂

    • Reply Rahime January 24, 2013 at 7:26 pm

      That where the problem comes with most laws–when you actually read them. They’re oftentimes very much for the convenience of the state.

    • Reply Brandy @ Afterthoughts January 24, 2013 at 11:13 pm

      That is so true. It has been slowly dawning on me that we need to keep a better eye on our local reps for this very reason. Sometimes I think our city wants to be a communist state when it grows up. In our meetings with city officials over things like permits or the right to own animals within the city limits, I am always struck by how little the people at City Hall appreciate freedom or support it in any way. It is disheartening…and, frankly, irritating.

  • Reply Jeanne January 23, 2013 at 8:20 pm

    So really it’s all contingent on whether or not gun ownership is a natural right. Clearly many Americans agree with you that it is. Certainly I am not so convinced. I do agree that life and liberty and the pursuit of happiness are, but using guns to protect those rights is not a natural right in and of itself. See we believe the first three as well, but we protect them without the use of weapons.

    I guess I am understanding more where you’re coming from, Brandy, but I still don’t even begin to agree. How can America be so far from Australia on this point? It is as if there is no common ground at all.

    I am still reading, though, my friend, and I am still pondering.

    • Reply Brandy @ Afterthoughts January 24, 2013 at 4:22 am

      🙂

      I like you, my friend.

      Really, I am only speaking for a little more than half of America, for there are people who agree with you on guns, of course. Unfortunately, those tend to be the people who deny natural rights altogether.

      I would like to hear you build a case for weapon ownership not being a natural right someday, if you ever feel so inclined. My general rule of thumb is that I allow myself to disagree with traditional thought, of course, but when I diverge from historical thought on a major point, I have to build a case on why I’m right. I have notebooks filled from trying to do this. I don’t always succeed, of course, but it is an interesting exercise nonetheless. 🙂

    • Reply Jeanne January 24, 2013 at 10:50 am

      I tried last week Brandy before you started your series. I spent quite a deal of time on it too. The problem was that it was getting nasty. I was unable to put my points across whilst keeping an even, civil tone. That’s why I’ve enjoyed your series. You’ve kept yourself nice through a difficult subject. One day we can discuss gun control in person over a couple of wines…or coffees. Until then I think we will just have to agree to disagree. Because I’ve lived without weapons for always – even knives are banned in public here, I just can’t see how they can be a right. Nor can I understand why wonderful, intelligent people whom I very much respect and admire would ever want them to be.

    • Reply Brandy @ Afterthoughts January 24, 2013 at 5:31 pm

      Yes, a talk in person will be real nice. 🙂

      I have, unfortunately, never acquired a taste for wine, and I deeply regret this because it seems so romantic. Our favorite ice cream shop has a red wine and chocolate flavor. We can go there first. 🙂

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