Judge Andrew Napolitano has done a great service with his recent article, “Guns and Freedom.” While the American debate on guns and governments continues, Napolitano makes the case, by appealing to the notion of natural law, that our individual right to self-defense does not come from government, but from God. Napolitano rightly states that:
[Colonial Americans] defeated the king’s soldiers because they didn’t know who among us was armed, because there was no requirement of a permission slip from the government in order to exercise the right to self-defense. (Imagine the howls of protest if permission were required as a precondition to exercising the freedom of speech.) Today, the limitations on the power and precision of the guns we can lawfully own not only violate our natural right to self-defense and our personal sovereignties; they assure that a tyrant can more easily disarm and overcome us.
Although there is much more often encapsulated in the modern use of the term, “natural law” is precisely what Thomas Jefferson was appealing to when he wrote in the Declaration of Independence about “self-evident” truths and “certain unalienable rights.” Napolitano agrees:
To assure that no government would infringe the natural rights of anyone here, the Founders incorporated Jefferson’s thesis underlying the Declaration into the Constitution and, with respect to self-defense, into the Second Amendment. As recently as two years ago, the Supreme Court recognized this when it held that the right to keep and bear arms in one’s home is a pre-political individual right that only sovereign Americans can surrender and that the government cannot take from us, absent our individual waiver.
In other words, the Second Amendment doesn’t grant the right to self-defense; we already had these rights from God Himself. The Second Amendment is nothing more than an acknowledgment of this “natural” and “divine” fact. Conservatives and gun owners that are trying to stake their claim to “gun rights” by appealing to the Second Amendment are on very shaky ground indeed, because what the government has “granted” can always be “taken.”
The historical reality of the Second Amendment’s protection of the right to keep and bear arms is not that it protects the right to shoot deer. It protects the right to shoot tyrants, and it protects the right to shoot at them effectively, thus, with the same instruments they would use upon us. If the Jews in the Warsaw ghetto had had the firepower and ammunition that the Nazis did, some of Poland might have stayed free and more persons would have survived the Holocaust.
Notice what Napolitano is saying here and how he carefully chooses his words: “the Second Amendment’s protection of the right to keep and bear arms.” The Second Amendment did not make gun-owning a right any more than the First Amendment made free speech a right. Both of these amendments to the Constitution were nothing more than written admissions of these rights. And, it must be remembered, these Amendments were added after the Constitution was written because of the Anti-Federalists’ mistrust of centralized government. It is also telling that these Amendments are referred to as the “Bill of Rights” and state their reason for existence as being to “prevent misconstruction or abuse of its [the Constitution's] powers, that further declaratory and restrictive clauses should be added: and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institution.” This means that the Bill of Rights was not only an acknowledgment of certain “divine” rights, but a restriction upon the government regarding them. Napolitano makes the modern misunderstanding of this historical fact clear:
Most people in government reject natural rights and personal sovereignty. Most people in government believe that the exercise of everyone’s rights is subject to the will of those in the government. Most people in government believe that they can write any law and regulate any behavior, not subject to the natural law, not subject to the sovereignty of individuals, not cognizant of history’s tyrants, but subject only to what they can get away with.
Unfortunately, most people in America, not just those in government, have this same erroneous understanding of the relationship between rights and laws.