Oregon and Our Post-Constitutional Republic

Are you embarrassed by the reasons why we have the right to keep and bear firearms? Democrats think you are and, in this, they could not be more right.

That is why last week’s mass-murder shooting at Oregon’s Umpqua Community College has led to the same tired political act we witness each time a gun tragedy or atrocity occurs: The shooting is politicized by the Left to advance gun restrictions; the timely and false suggestion is made that gun crime is on the rise (it has actually decreased dramatically in the last generation); regulatory proposals are advanced that would have had little or no chance of preventing the just-occurred shootings; gun-rights advocates point out the flaws in both the proposals and the premise that guns cause more violence than they create; and we have a stalemate in the gun policy debate while ignoring mental illness (the wayward policies on which contribute more to mass-shootings than does the availability of firearms).

Why are we debating policy? After all, gun rights are explicit in the Second Amendment. In general, there is not supposed to be much policy debate where our fundamental rights are concerned. We would not, for example, abide a suggestion that we reconsider whether the government may break into your home and poke around for evidence without a warrant. That is not to say there may not be logical reasons to allow a police officer to act unilaterally on a strong hunch; it is to say that a constitutional right is supposed to be a guarantee – something the government has to respect, not something the citizen has to justify.

So why is that not the case with guns? When pushes for more regulations and restrictions come along, as they inevitably do, conservatives and libertarians counter that these would violate the Constitution. But the claim is a muted one because the people asserting it are uncomfortable with (and sometimes uninformed about) the rationale for the constitutional right. Instead, our gun debate proceeds from the premise that the federal government is simply trying to protect Americans from gun violence. Thus, most people reason, the government deserves a fair hearing because its motive is noble, and it deserves a degree of deference because, by performing its essential police functions, it has developed expertise in balancing concerns about community safety and personal security.

It all sounds perfectly reasonable … except for being so wrong, historically speaking. Our Constitution – the debates during its drafting, the rationale for the Second Amendment – portrays government as the force to be feared, not heeded.

For the framers, the central government was the main reason the citizenry should be armed. They believed nothing more threatened individual liberty – the value the Constitution most promotes – than an all-powerful central government. Consequently, they prohibited Congress from providing for a standing army for more than two years’ duration. Standing armies, they calculated, can be turned against free people by an abusive government, leading to tyranny.

Obviously, if the country were not to have a standing army, that would encourage other countries to attack and conquer it. At that point, Congress’s power to raise an army would be cold comfort since the conquest might already be accomplished. The framers addressed this problem by encouraging the citizenry to remain armed. That way, each state would continue to have a militia that could defend the state but also could be pressed into the service of the nation if a threat or exigency required it – thus protecting the whole country while a national army was being raised.

Meanwhile, citizens would maintain the right to protect themselves. Since the framers and American culture regarded state power as primarily a threat to liberty, not the ultimate guardian of liberty, they would have rejected the notion that citizens should completely delegate to state police the obligation of protecting citizens from crime. The reasoning here is not along the lines of the public policy quip that “when every second counts, the police are only minutes away.” It is illustrative of the conceit that there was as much cause to fear the state’s use-of-force capabilities as to take comfort in them.

Do Americans still believe these things? I don’t think so. Americans do not exactly like government, but most do not see it as a forcible threat to liberty. Unlike eighteenth century Americans, we moderns tend to assume our liberty as a given, not as something we need to fight for – especially against our own government. We have lower expectations about liberty: we concede the government a wide berth to regulate our lives; we tend to see even burdensome regulation as a nuisance, not an existential threat.

Moreover, we tend to appreciate rather than dread our police forces (movements like Black Lives Matter notwithstanding). And given that many of us live in dense metropolises, we seem to assume that the visible presence and activity of sizable state and municipal police forces are adequate to discourage crime and keep us reasonably safe. Many of us do not own guns – we’ve grown comfortable with delegating the duty of safeguarding ourselves to the government. Many Americans are more fearful of the prospect of armed private citizens than armed police officers.

My point here is not to judge whether these assumptions and beliefs are right or wrong. It is to acknowledge that they are the ingrained in most Americans – including most Americans who support private gun rights.

The Left grasps this. And while leftists don’t have much sense of humor about themselves, they fully understand the power of ridicule. When they hear a vigorous claim that, “You can’t take away my guns because the Constitution guarantees my right to them,” they are apt to snicker, “Yeah, because you just might have to shoot at the invading U.S. army when the government declares a police state, right?”

Few people are willing to answer that mocking question with, “Well, yes, that’s right.” People who frame government as the perilous threat rather than the admirable “public servant” are lampooned as nutters by the media and many of their fellow citizens.

Whether they should or shouldn’t be is beside the point. What matters is that you cannot make a compelling constitutional claim about gun rights unless you believe in the Constitution’s rationale for those rights. By and large, the public lacks that conviction … and that is why our debate is about struggling to limit the Left’s antigun agenda rather than asserting our own gun rights.