The Slippery Slope

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

That’s the second amendment, folks. And I intend to show what prior courts and my opponents have neglected to take into account: the context of the amendment, the necessity of the protection it affords us, and the necessary limitations on the rights granted to the State.

Here are the arguments, and discredited:

Guns are a tool, and nothing more.
The same can be said about a can-opener, an automobile, an lead pipe, a piano-wire or a computer. This is a null-statement, devoid of any meaning applicable to this debate.

Many right wingers are opposed to any sort of regulation of guns that might limit the ability of people to use them to infringe on the rights of others.
This is logical fallacy of poisoning-the-well; asserting an avowedly negative consequence to the motives of your opponents.

The argument then centers around interpretation of the amendment, as written, with a specific focus on legal precedent. This seems to be the strongest, and the only remotely logically sound argument worthy of a full rebuttal. Here goes:

For starters, I’ll give a brief refresher course on the US Constitution. Many people have never read it in its entirety (it’s not very long,) and even fewer have any real understanding of it. The Constitution was designed to form a sovereign state, strong enough to remain sovereign, but at the same time remaining subordinate to its constituents. This differs from monarchies and the like, where the heads-of-state and policy-makers were often above the law. The US Constitution is a limitation on the rights granted to the government. Specifically: the federal government has no power to do anything that isn’t enumerated within the constitution. Anything not enumerated as a right of the government is reserved to the people individually or to the several states.

Which brings me to my next point: The founding fathers were rightly skeptical enough to include the Bill of Rights. Now, prior to the Bill of Rights, all the Rights enumerated therein were taken as rights of the people in their own capacity. But fearful of a costly misinterpretation, namely, “if it isn’t enumerated, it isn’t a right,” the founding fathers decided to enumerate the most fundamental of the rights reserved to the people; these first 10 amendments to the Constitution are collectively, the Bill of Rights. The Bill of Rights also tells the government what it cannot do.

The government cannot forbid your free practice of speech or religion. It cannot search your home without due process of law. You cannot be compelled to incriminate yourself in a court of law… and so on. The Second Amendment grants individuals the right to keep and bear arms. Make no mistake about this.

For the legal mumbo-jumbo:

Keep in mind that the Constitution (and the Bill of Rights,) limit the power of the government.

Now refer to the Constitution, Article 1, Section 8:

Clause 12 provides for the appropriation of funds, and the ability to raise a formal army for the national defense for a period of not more than two years.

Clause 15 permits congress to summon the militia as necessary for the common defense.

Clause 16 refers to the organization and discipline of such militia. Appointing officers, and training the militia, are responsibilities of the several states. This clause also calls “to provide for, [arm and discipline]” the militia. Clause 16 also makes reference to such part (of the militia) as may be employed in the service of the United States, which certainly implies that at any given moment, only a fractional part (or perhaps, no part at all) of the militia may be in service to the Country. The rest of the militia, albeit idle, is no less a part of the militia.

Now, because the words chosen are “militia” and “army,” the men who drafted the Constitution clearly meant two separate things. Had they meant to describe the regulation of a federal army, they would’ve referred to an army, not a militia. But they refer to a militia, which was at the time, and still is, considered to consist of any able bodied man between 17 and 45 who is or who desires to become a citizen of the United States.

The Second Amendment is not, and cannot be interpreted correctly to mean that the founding fathers were providing for a federal army; the Constitution having already provided for an army and navy, and to some extent, the militias of the several states, it would’ve been redundant to include the same enumeration in the Bill of Rights, not to mention that the amendments to the constitution were explicit exclusions of power to the federal government. It is not a logical deduction to conclude that there exists a provision for a federal army, in a document the sole purpose of which is to define and specifically enumerate the inalienable rights of man, one of which is deemed to be the bearing of arms.

The purpose of the second amendment is to insure the rights of the citizens remain inviolate. Arms protect the rights of man (to life, liberty, pursuit of happiness,) protect him from foreign aggression, and from domestic oppression. Take this in the context of colonial America, post-Revolutionary America. The founding fathers had waged war, nay, Treason, against the Crown. Had their insurrection been unsuccessful, they doubtless would’ve been hanged as traitors. The right to bear arms is the ultimate system of checks and balances written into the Constitution, it is a bodyguard, defending all of the other rights of man, which ensures the government remains subordinate to its constituents.

Now, I can quote John Ashcroft. I can quote House research. I can quote Patrick Henry, Thomas Jefferson, Samuel Adams, Richard Henry Lee, Tench Cox, and John Madison. But I’m presented with this problem:

When the problem of the “well-regulated militia” portion of the amendment failed him, my opponent cited the authority of the courts, specifically focusing on precedent and stare decisis. The argument is as follows: The courts make rulings, which become precedent, which guide other rulings. The longer a precedent exists, the more “legal” it is, and hence it becomes harder and harder to overturn. I’m paraphrasing that a bit, but I think you’ll get the point. The conclusion of the opposition’s argument is:

And yet, no court has ever agreed with this interpretation

This statement implies that the courts are infallible. But we know for a fact that the courts are quite fallible, and have been so in landmark cases before. It is also an appeal to authority (logical fallacy) the aim of which is to discredit my argument by pointing out the courts supremacy in the field of legal authority. But all the authority in the world cannot confer justice by means of authority. And authority cannot make something right, or free, by whim or decree. I was also hit with something along the lines of “Are you smarter than the SCOTUS?” which is also ad hominem/appeal to authority.

Perhaps I am. But let’s assume for the moment that I am not, because this is the more likely case. If, assuming my argument is correct, the courts have gotten this wrong, how did they go about reaching the incorrect decision?

Now, the legislation can pass laws, which the court later deems unconstitutional. But the legislation doesn’t pass affirmative laws. It is not reasonable to expect the legislators to pass a “law” stating that every man is allowed to keep a firearm, especially considering that this Right is enumerated in our Bill of Rights. This is precisely the type of misinterpretation that Amendments IX and X aimed at eliminating.

Aside from that digression, this “law” is already in effect. It is deemed to be a natural right, inherent to all men, and enumerated in our Bill of Rights. Who then polices the Courts for their misjudgements?

I offer several points in rebuttal to my opponent:

A) There have been precious few precedent cases regarding second amendment rights. It is possible that an underlying criminal element in precedent cases skewed the court by discrediting the accused

B) Certiorari has not been granted by SCOTUS with regard to this issue of the Second Amendment, SCOTUS prefers to defer to lower courts

C) By your own admission, the rigidity of stare decisis and case precedent.

The Courts may only rule in cases of an actual dispute brought between actual petitioners. They do not hear speculation. They do not make ex ante rulings. I cannot write to SCOTUS and ask them to hear my objection to a given issue. So in order to be granted a hearing, which will be necessary to challenge the precedent, a “crime” must first be committed under what is assumed to be an unconstitutional law.

We are presented now with several roadblocks:

There are few willing martyrs, and Court and Attorney fees are expensive, often prohibitively so. It follows that of the willing martyrs, even fewer still will have the sufficient funds to fight the government, which has, for all intents & purposes, unlimited resources.

Even for corporations, who often settle disputes out of court, the opportunity cost of a lawsuit and the several appeals (which may or may not be granted, this is also not a given— SCOTUS only hears 50 or so cases annually) most likely outweighs whatever the benefits are perceived to be.

These (and possibly others) are strong disincentives and barriers, prohibitions if you will, to challenge the existing law. Taking these disincentives into consideration, it is easy to imagine how bad precedent may be set. And bad precedent leads to bad legislation, which in turn engenders further bad precedent— and by my opponent’s own admission, makes it all the more difficult to overturn.

This, my friends, is the slippery slope.