Securing a Free State: Why the Second Amendment Matters

Securing a Free State: Why the Second Amendment Matters David Harmer i I. INTRODUCTION The printed program for the symposium1 at which I presented the paper giving rise to this article mistakenly entitled my remarks, "Serving a Free State." When asked my title some weeks earlier, what I had replied was something quite different: "Securing a Free State"-a phrase suggested by the Second Amendment itself, and one much more in harmony with its purpose. Although the announced title directly contradicted the thrust of my remarks, the error was serendipitous; it gave symposium participants the opportunity to reconsider the debate over Second Amendment jurisprudence in light of first principles. If one believes that the people are to serve the state, that the rights of the people are created or granted by the state, or that the security of the state itself is of paramount importance, then the right to keep and bear arms is a dangerous vehicle for subversion that must be eliminated;2 and eliminated it has routinely been in totalitarian countries.3 If one believes the opposite-that neither the people nor their rights were meant to serve the state, but that the people were endowed by their Creator with certain inalienable rights, and that the state was created to secure those rights-then the Second Amendment assumes awesome importance, not only recognizing one among many particular rights of the people, but also providing an independent means of preserving and enforcing those rights.5 The rights of the people are threatened by the surfeit of government as surely as by its absence. In the Constitution's ingenious mechanism of checks and balances, the Second Amendment provides an extragovernmental check on governmental power. The right of the people to keep and bear arms is the ultimate guarantor of all their other constitutionally recognized rights. I said as much in my unsuccessful 1996 congressional campaign,6 which was one reason I was invited to participate in BYU's symposium. Even in congenitally conservative and heavily Republican Utah, the notion that the Second Amendment not only authorizes an armed populace but implicitly recognizes a right to rebel is considered radical, at least in urban areas. And understandably so. Proponents of gun control, and those in the mass media who report on their efforts, generally ignore the Second Amendment. If they acknowledge it at all, they generally describe it as a quaint technicality which merely authorizes federal or state governments to maintain armed militias.7 As Daniel D. Polsby writes: The theory that is most often encountered by the intelligent lay public reads the words [of the Amendment) to say something like: "In order to make themselves secure, states have a right to have a well regulated militia, and Congress may not restrict state regulation of militia members' weapons." This is approximately the interpretation favored by most major newspapers' editorial writers, by gun control groups, and by a broad swath of conventional public opinion, running the partisan gamut .... 8 Even ostensible proponents of Second Amendment rights sometimes seem to be describing nothing more than a limited right to use firearms for unthreatening recreational purposes or, in extreme circumstances and as a last resort, for self-defense.9 Far from unconstitutional, circumscribing the right thus characterized in an effort to prevent the senseless carnage of drive-by shootings, juvenile gang warfare, and other high-profile violent crime apparently strikes many citizens as eminently sensible. Federal courts, to the limited extent they have considered the matter, appear to agree. Most of the very few reported decisions mentioning the Second Amendment marginalize and trivialize it, often denying that it confers any individual right at all.la II. NATURE AND MEANING OF THE RIGHT The judiciary's neglect of the Second Amendment is unfortunate because the individual right to keep and bear arms is a crucial element in the Constitution's mechanism of ordered liberty. …