Edward J. Erler, Hillsdale.edu, March 2013, Volume 42 Number 3
The Preamble to the U.S. Constitution stipulates that "We the people... do ordain and establish this Constitution for the United States." It is important to note that the people establish the Constitution; the Constitution does not establish the people.
When did "we the people" become a people? Clearly Americans became a people upon the adoption of its first principles of government in the Declaration of Independence, which describes the people in their political capacity, as "one people", and in their moral capacity, as a "good people." In establishing the Constitution, then the people executed a second contract, this time with government. In this contract, the people delegate power to the government to be exercised for their benefit. But the Declaration specifies that only the "just powers" are delegated. The government is to be a limited government, confined to the exercise of those powers that are fairly inferred for the specific grant of powers.
Furthermore, the Declaration specifies that when the government becomes destructive of the ends for which it was established - the "Safety and Happiness" of the people - then "it is the Right of the People to alter it or abolish it, and to institute new Government." This is what has become known as the "right of revolution", an essential ingredient of the social compact and a right which is always reservd to the people. The right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then by necessity, the people alos have a right to the means of a revolution. Only an armed people are a sovereign people, and only an armed people are a free people - the people are indeed a militia.
The Declaration also contains an important prudential lesson with respect to the right of revolution: "Prudence ... will dictate," it cautions, "that Governments long established should not be changed for light and transient causes." It is only after "a long train of abuses and usurpations pursuing invariably the same Object," and when that object evinces a design to reduce [the people] to absolute Despotism,", that
it is their right, it is their duty, to throw off such Government, and to provide Guards for future security .
We the people have a natural right of resistance and self-preservation which necessarily entails the right of having and using arms for self-preservation and defense.
The great law of self-preservation cannot be repealed, or superseded, or suspended by by any human institution.
The Second Amendment reads as follows:
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.
The immediate impetus for the amendment has never been in dispute. Many of their revolutionary generation believed standing armies were dangerous to liberty, Militias made up of citizen-soldiers, they reasoned were more suitable to the character of republican government. Expressing a widely held view, Elbridge Gerry in a debate over the first militia bill in 1789 that "whenever Governments mean to invade the right and liberties of the people, they always attempt o destroy the militia."
The Second Amendment is unique among the amendment in the Bill of Rights, in that it contains a preface explaining the reason for the right protected: Militias are necessary for the security of a free state. We cannot read the words "free state" here as a reference to the several states that make up the Union. The frequent use of the phrase "free State" in the founding era makes it abundanly clear that it means a non-tyrannical or non-despotic state. Justice Antonin Scalia writing for the majority in the case of District of Columbia v. Heller (2008) , rightly remarked that the term and its "close variations" were "terms of art in 18th century political discourse, meaning a free country or a free polity."
The principle constitutional debate leading up to the Heller decision was about whether the right to "keep and bear arms" was an individual right or a collective right conditioned upon service in the militia. As a general matter of course, the idea of collective rights was unknown to the Framers of the Constitution - and this consideration alone should have been decisive. We have James Madison's own testimony that the provisions of the Bill of Rights "relate [first]... to private rights."
The notion of collective rights is wholly the invention of the Progressive founders of the administratie state, who were engaged in a self-conscious effort to supplant the principles of limited government embodied in the Constitution. For these Progressives regarded what the Founders called the "rights of human nature" as an enemy of collective welfare which should always take precedence over the rights of individuals.
For Progressives then and now, the welfare of the people - not liberty - is the primary object of government, and government should always be in the hands of experts. This is the origin of today's gun control hysteria - the idea that professional police forces and the military have rendered the armed citizen superflous; that no individual should be responsible for the defense of himself and his family, but should leave it to experts. The idea of individual responsibilities, along with that of individual rights, is in fact incompatible with the Progressive vision of the common welfare.
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