Curse You, Bill of Rights!

Might we be better off today if the Bill of Rights had never been written?

If your reaction to that begins, "but the Bill of Rights gives us…" I'm halfway to my point. The Bill of Rights doesn't give us any rights. It simply confirms a few of the rights that the founders thought God had given us.

But somehow the notion became popular that the Bill of Rights gave us rights.

In a spirited discussion of scary-looking semiautomatic rifles with removable magazines ("assault rifles," which aren't technically assault rifles, but which we've allowed gunphobes to dub, so what the hell), my friend Frank pointed me to this (pre-Heller) article about the Second Amendment, in which the author says, among other things:

The Standard Model finds, squirreled away in the Second Amendment, not only a private right to own guns for any purpose but a public right to oppose with arms the government of the United States. It grounds this claim in the right of insurrection, which clearly does exist whenever tyranny exists. Yet the right to overthrow government is not given by government.

Of course the right to overthrow government is not given by government. No right is given by government. If government gives it, government can take it away, and it's not a right. (Even the Supreme Court is guilty of this thinking: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."  District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (Scalia, J.).)

The nature of government is to increase its own power. The founders, students of history, knew this. They were not acting under the delusive belief that every American government ever would be a lawful one, honoring the Constitution. They didn't trust governments—even the government they were creating—and they wanted the people to be able to keep their government honest, through the press, in court, and if need be by force of arms.

A common response to the argument that the right to keep and bear arms was intended to allow us to keep government honest is that a man with a rifle has no chance against the might of the U.S. government. Maybe the anti-gun folks who say that are right.

The rifle is a weapon. Let there be no mistake about that. It is a tool of power, and thus dependent completely upon the moral stature of its user. It is equally useful in securing meat for the table, destroying group enemies on the battlefield, and resisting tyranny. In fact, it is the only means of resisting tyranny, since a citizenry armed with rifles simply cannot be tyrannized.

—Jeff Cooper, The Art of the Rifle

Maybe Cooper is wrong that a citizenry armed with rifles cannot be tyrannized. But even if Cooper is wrong and a tyrannical government might summon the will to crush the resistance of a citizenry armed with rifles, that's going to take a great deal more governmental will than crushing the resistance of an unarmed citizenry.

What's this about a tyrannical government? An impossible proposition, you think? James Madison thought so too:

That the people and the States should for a sufficient period of time elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period, uniformly and systematically preserve some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggeration of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

James Madison, The Federalist No. 46.

But Madison, an educated man, would have known his Blackstone, and would have agreed with that jurist's conventional wisdom that

To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.

Not only does our government by violence confiscate people's estates without accusation of trial through the mechanism of forfeiture, but it also bereaves people of life without accusation or trial, claiming that its legal rationale for doing so is secret. Where is the alarm of tyranny throughout the whole kingdom? Blackstone was wrong: the grossest acts of despotism raise no alarm. Madison was wrong: the people silently and patiently behold the gathering storm, and continue to supply the materials. (What did Madison miss? He didn't anticipate the science of fear as compulsion.)

Madison described what would happen in that impossibility (which, now that the government claims the authority to kill without review or even argument, seems inevitable):

A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.

None of this would be of any good unless the citizenry were armed. If, while the Constitution is in effect, the people are disarmed, then when the Constitution is nullified they will still be disarmed, and all the more easily tyrannized.

The Second Amendment did not give us the right to bear arms so that we could overthrow the Constitution. It preserved, for a time, our unalienable right to bear arms so that if (and that "if" is closer to "when" since the founders had no reason to think the Constitution would last as long as it has) the Constitution were overthrown the people could resist.

Still, that's a good thing, right?

Maybe, maybe not. It gave us words to argue about—what does well-regulated mean? what's a militia? is a well-regulated militia a precondition to the right?

If we didn't have those words to argue about, perhaps we would all recognize that our rights aren't "conferred" by the Constitution, but are natural. If we weren't squabbling about what the words mean, we might look elsewhere to determine the wisdom of maintaining Cooper's "citizenry armed with rifles."

Where might we look, were we trying to decide whether it would be wise for the citizenry to be armed with rifles? We might look here:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…

It is not only our right but also our duty, when the Constitution is overthrown and the government becomes destructive of its purpose of securing our unalienable rights, to throw off such government.

Compared to some of my friends and readers, I am a cheery optimist. I think we may not see outright tyranny in our lifetime (but then I wonder what would constitute outright tyranny, if publicly announced extrajudicial governmental murders do not…maybe publicly announced extrajudicial murders by an unelected president). Our children may not see it in their lifetime. But when the Constitution is finally dead and beyond resuscitation, I want my children or their children's children to have the tools they need to do their duty.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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5 Responses to Curse You, Bill of Rights!

  1. Robb Fickman says:

    Mark-
    I think the Gun Manufacturers Lobby would love to use your argument to support their billion dollar industry.
    Yet You have made me reconsider my own
    Position and think. I am still thinking on this one.

    In the meantime I agree with you that we can never trust the Government. Jefferson said
    ” Resistance to tyranny was obedience to God.” Our government engages in all kinds of tyranny. We see it daily at the courthouse.
    Most of our Countrymen are blind sheep. We all have a duty to each other to fight to preserve our liberty. I agree that No Right emanates from the Damn Government. The more the Government attempts to infringe on our liberty, the more we must resist.

    Robb Fickman

  2. Mr. B., while this Posting is very educational and having created some very good topics fpr present, past & future conversations here & elsewhere, it’s the very end that makes me stand up and be counted.

    “Our children may not see it in their lifetime. But when the Constitution is finally dead and beyond resuscitation, I want my children or their children’s children to have the tools they need to do their duty.”

    With that, I’m going to pass today’s lesson on to everyone I can and ask parents to also consider taking time to teach ‘all’ children how to tell FAKE from REAL. (Don’t leave it up to others.) As for those that choose to squint and prefer sand in their ears – *Guilty or Not, (if & when) you remind them that it’s been 5 days and still not allowed to make that one phone call and / or 5 months and you haven’t had your Miranda rghts read, don’t be surprised to hear the following:

    You’ve been watching too much TV, don’t you know that shit isn’t REAL?, If they say you made a call and have had them read, we can’t do anything about it. It’s their word vs. yours. Now, can anyone imaging being told this by; H.C. sheriff’s deputies, HPD Robbery Un-Detectives, your very own FAKE CDL & confirmed by a captive audience? I
    can & have had the pleasure of witnessing the death of the so-called ‘Constitution’. Ok, it might have just been a stroke but it’s still just as Fake as it ever was.
    Thanks.

  3. John David Galt says:

    When the founders wrote the Bill of Rights, average Americans were as well or better armed than their government, so revolution was possible. Difficult and expensive, but it could be done.

    Unfortunately, that is not true anymore, and the kinds of weapons you and I would need to have to make it true again — from tanks to artillery to grenades to missiles to fighter planes and battleships — have long since been successfully outlawed for civilians.

    So I don’t see any way that our descendants could ever successfully revolt, unless they had the help of some major foreign country, or part of our own military defected to the rebels.

    But who knows? Maybe someone will invent a wonderful new weapons technology that is cheap to make, and spread the knowhow to the masses before government can prevent it. We can always hope.

    • Michael Stuart says:

      Mr. Galt, you’re entirely too pessimistic.

      Witness: Afghanistan and Iraq, just two recent (and ongoing) examples of battle rifles being used to repel a technically vastly superior occupying force. Afghanistan, the “graveyard of empires”, has now repelled both twentieth-century superpowers…via goatherders with antiquated AK-47′s.

      Now set the situation in continental America. The occupying force lives here and must gain its sustenance from the occupied territory. Its fearsome weapons are limited in number and usage, because the populace will dumbly accept only so many Wacos and Ruby Ridges before the idiots understand they, too, are under attack.

      As conflict escalates, they face the daunting proposal of constant sniping, battling against a vast numerical superiority; granted, the occupiers have more powerful weapons, but in actual fact, not much. An RPG doesn’t convey the power of a thousand rifles; it’s a chainsaw if the rifle is a jigsaw. Air power? Effective against a fixed, concentrated enemy position; not so much against a generally unruly populace. Battle ship? Useless in CONUS.

      No, there is a reason tyrants first disarm the citizenry despite their superior firepower.

      Give up your weapons, and find out; ask the Turks, the Russians, the Germans, the Chinese…

  4. Ric Moore says:

    There is tyranny and there is tyranny. One form of tyranny is where one, or almost two, companies hold your access to information as their own. Software. Microsoft and, to a lessor degree Apple, would stand between you and the information highway, holding you hostage via a virtual toll-booth, and limit access to those that can afford to pay both software and license costs. So, I use Linux.

    We have a growing non-profit, with a website at http://www.communitysuccess.org
    We get donations from folks from all walks of life, but mainly minorities and “the formerly incarcerated”. We could not afford to spread our message if we had to pay for server edition of this and site licence of that. We would, in effect, be handing over the “widow’s mite” to the world’s richest white guy. For the same reasons the necessity of gun ownership is mentioned above, we’re missing the issue of losing our rights to be digitally connected in a digital age.

    So, in reply to John Galt’s statement “Maybe someone will invent a wonderful new weapons technology that is cheap to make, and spread the knowhow to the masses before government can prevent it.” I say that it has happened, only it’s a digital weapon instead, …Linux. I haven’t used Windows since 3.1 and haven’t had to pay anyone a cent, that I didn’t volunteer to. So, IMHO, owning a gun isn’t as important as a weapon as having access to serving a message to the web and the world. Opinion is also a weapon. Ric

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