Consider the 9th Amendment for gun rights

harmA good friend of mine is currently pursuing a law degree through the Vermont Law School. He and I were discussing gun control/gun rights a few days ago in the context of my simple allegorical novelette, The Building Blocks (never miss a chance to promote your work). My friend was reading the story and wasn’t sure if he’d agree with it overall or not as he hadn’t gotten to the end yet and didn’t know what side of the argument of “to control or not to control” that I embraced. We got right into the discussion so he wouldn’t have to wait in suspense while he finished reading. I support gun rights by way of personal property rights, but I tried to objective in the story I wrote.

My friend made some outstanding points in the argument. I wasn’t surprised, he’s an outstanding fellow. What really sounded good to me was his explanation of the Bill of Rights and how the 9th Amendment might be a better supporting case for the gun advocates than the 2nd Amendment. As he explained, looking at the language of the 2nd Amendment it refers to the right to bear arms as part of a militant force. This is argued and debated all over both sides of the gun control issue trying to figure out what the 2nd Amendment really means. I’m not going to try to interpret it, all I know is it says (copied and pasted from Cornell.edu) “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.” Okay, I am going to interpret it. We have the right to own guns and use them in an organized fashion to maintain the security of our freedom, as a nation and as a state. Let’s look at the 9th Amendment now.

Again from Cornell.edu, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment accounts for the natural rights of people. Essentially, those rights that have not previously been identified and defined in the first eight amendments are now blanketed into this amendment, so use common sense and good judgment to determine what that means. Well, it is good sense to know that the government shouldn’t determine what property people should be able to own, right? I think so, except for in rare instances, such as a nuclear weapon. I think I’d be okay with the government trying to prevent civilian ownership of nuclear weapons. The point in that is to provide security for society. My ownership of an AR-15 semi-automatic rifle with detachable 30 round magazines does not endanger society. Unfortunately, someone else owning one might. Now we get into the social contract.

The social contract theory suggests that an agreement exists that must be entered into by any person’s wishing to participate in a society. Part of this agreement necessarily involves the giving up of certain rights or privileges for the shared benefit of protection and prosperity under the umbrella of society. For instance, while walking past a fruit tree I might want to pick all of the fruit and make a whole lot of jam. If there is no social contract I might be free to do so, but under a social contract this tree might belong to another person and my taking of the fruit would violate my agreement of societal inclusion. I agreed that I would respect property boundaries, in order to obtain protection of property boundaries for myself. Give and take. Is there a social contract argument for gun ownership?

Under the 9th Amendment I can argue that property ownership is a guaranteed right by nature, though not spelled out specifically in the Constitution or Bill of Rights. However, under the social contract theory I recognize that some of my wants might need to be sacrificed in order to maintain the security of the population at large. Now that sounds a little utilitarian, which I don’t think the social contract necessarily advocates it. But I’ve only ever had one ethics/philosophy class, so I’m not an expert. Can I give up my claim to firearms with higher rates of fire in order to bring about increased safety in society? After all, that’s all the gun control advocates are asking, right?

It makes for a good philosophical argument, but I don’t support it. The social contract is valuable, but only so far as it retains the most important individual liberty, which is the right to protect self and family against those who would destroy liberty and enslave others. I will not give up my right to defend myself and my family in the name of liberty. Guns are not a vital part of that freedom, but they sure make a big difference. I have never needed to use a gun in defense of my family and I hope I never will. But I feel that if I don’t have the freedom to do so then it is already too late.

The issue we are facing in the U.S. right now, and basically throughout the world, is not about gun control, but about control in general. Can one entity control another entity and get away with it? That’s the issue. Label me a radical, right-winger, conspiracy theorist or whatever, I don’t mind. There are legitimate sacrifices that are made in the name of the social contract, and I can appreciate that. My friend offered the example of speed limits. He said he might want to drive 60mph but the posted limit is 50mph. He agrees to drive 50mph in order to maintain safety as part of a social agreement. Now I ask, does the speed limit law prevent anyone from endangering others on the road? Of course not. But does it make it safer in general? Yes it does, so far as responsible people obey it. What it doesn’t do is prevent people from disobeying (though it may be possible to prevent disobedience, I am completely opposed to that level of enslavement by one entity over another). Only taking all cars away would result in absolute adherence to the law. It is a matter of control. See the similarity with the gun debate?

Either we have a natural right to own property, even when that property is potentially dangerous, or we do not have that right. If we do not have that right, or the danger posed by a few is great enough, then we need to have civil discourse and discussion and enter into an agreement as a collective society that certain wants in regards to firearm ownership must be sacrificed for the overall safety of society. But this has to come from a majority vote, not a vote among corrupt politicians catering to special interest lobby groups while they try to get re-elected and maintain their “pigs in the farmer’s house” lifestyle at the expense of the working class animals. And the defense of such rights, likewise, shouldn’t come from corrupt politicians catering to special interest lobby groups who do like guns, while they try to get re-elected and maintain their “pigs in the farmer’s house” lifestyle at the expense of the working class animals. I realize that the politicians on both sides of this argument are probably equally corrupt.

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About paulbrodie

I am a writer and a musician. My education is in psychology with emphasis in industrial/organizational psychology. My work experience has been primarily with electronic document management. Academically and intellectually I am interested in criminology and sociology. I am married to my favorite person in the world and we have one daughter.
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6 Responses to Consider the 9th Amendment for gun rights

  1. We always feel we have to premise our thoughts on this matter by stating, “”We’re gun owners. Enthusiastic gun owners.” That being said, the language of Amendment II seems to have been overcome by events. When it was written, the U.S. did not have a standing army. We now do. So, on those grounds alone…
    A second argument that seems plain enough is that the Founders did not attempt to foresee every eventuality. They considered the Constitution to be a “living document.” Everyone says they understand what that means, and yet…
    When Amendment II was written, guns were limited to single-shot muzzle loaders. Jefferson, Madison, Jay, et al were smart men with the overarching good of the people and the good of the state in mind. This is one of those unknowable suppositions, but we can’t even begin to imagine that they would have advocated for no limitations on the kind of weaponry now available. Think in terms of “attractive nuisance:” Any reasonable person – with no preconceived prejudices – could look at the kind of weaponry and its ease of availability today and Confidently Predict that under those circumstances, America would bring upon itself far higher rates of gun deaths than does any other modern democratic nation… as is indeed the case.
    There are lots of other points, but here’s our final observation: Warfare has changed dramatically since 1776. Groups which successfully throw off tyrannical rulers or which successfully protect themselves from hostile military takeover do not do so with the gun hanging on the wall over the fireplace – as was the case to some extent in 1776. From the beginning of any given conflict in these modern times, groups are reliant upon sophisticated weaponry, and this weaponry comes either from elements of the military defecting, or from outside groups. So, unless your position is that, say, the self-appointed “Michigan Militia” has the right to own rocket launchers, drones, tanks… on up to nuclear weapons…
    We DO believe that it was the Founders intent that citizens have the right – and the means – to throw off the yoke of unjust government. The problem, as we see it, is that the solution as experienced in 1976 and codified in the Bill of Rights in 1791 has been overcome by technological advancements and inter-governmental dynamics in the way in which warfare is conducted.
    Oh… and there is one other point, and we’re always surprised no one mentions it. One other thing has occurred since 1791 that would seem to obviate Amendment II – something the founders had thought and believed could happen, but that the world had not yet seen: We, in the United States, peaceably removed our head of state on the grounds that he was corrupt in 1972. Not a shot was fired.
    In any event, thought-provoking post today. Thanks.

    • paulbrodie says:

      Interesting point about non-violent “regime change” in the U.S.

      There is a lot we can suppose about the mindset and conditions during the founding of this country in regards to the documents written and ratified. Whether or not the founders would have created the same Bill of Rights with knowledge of today’s weapons and cultural perspective, who knows?

      I believe what you do, that the founders wanted to guarantee the right and ability to break down an unjust government. So now, instead of debating what types of firearms can be owned safely, maybe our discussion should be about whether or not a government that seeks to impose such regulations is still just?

      Maybe that’s an extreme perspective, that the government is no longer just, but I think it is widely held right now, which is something that needs to be addressed in a civil manner.

      As far as the Constitution being a living document, well, I think you are right, “Everyone says they understand what that means, and yet…”

      So we have some people who support absolute gun rights for all, and some people who support gun restrictions in the name of safety. Which group constitutes the “People” behind the Constitution? All of them do. So we discuss it and we vote. I think that’s what the founders would expect. But for some reason as a nation we seem to be losing our ability to hold civil discussions.

      I still think the focus of the nation needs to be on the people and not the weapons. It’s a position that has been beaten to the point that it has lost substance, the cliche “guns don’t kill people, people kill people.” Newspeak. Guns certainly make it easier to kill more people rapidly, but there is something in the heart and mind of the person who aims the barrel at another person and squeezes the trigger. That’s what we need to target. I think it is easier to target guns, so that’s what happens, but we, each of us, the people, are the issue that needs to be addressed. If a kid hits another kid with a book do you take all the books out of the classroom or do you separate the one kid who did the hitting?

      Thanks for the discussion. I really like the reference to impeachment, it puts the unjust government issue into perspective. Of course, if the unjust government is so pervasive that it can’t regulate itself appropriately anymore…

  2. Jesse Gray says:

    Paul, I appreciate your post and just want to briefly respond. Building on our foundation I want to remark on the automobile and speed limit comments in your post. Cars are instruments of transportation and serve a desirable objective to members of society. However automobiles have the potential to serve an adverse purpose when manipulated by the operator. If you are caught by the police for speeding on too many occasions the penalty will be a suspended license meaning that one cannot lawfully drive, thus, theoretically taking the car out of their possession, or increasing the penalty for continued unacceptable behavior.

    I agree with you that the ban of automobiles would be absurd, just as the ban on certain weapons would be absurd. However, I feel that just as someone can lose the privilege to drive based on unacceptable past behavior, just like if one misuses a firearm there should be certain actions taken by law enforcement. I agree that guns are not the problem however they perpetuate violence and should not be readily available to individuals with violent tendencies or desires based on past action, just as the automobile owners will be disciplined for misuse of their vehicles. It is banning the offender from the instrument.

    I will save my social contract though for another occasion.

    • paulbrodie says:

      [Jesse is the friend I had the discussion with, by the way]

      This comparison works well. If someone abuses the freedom to own a car then they are restricted by society in that freedom. Likewise, if someone misuses a gun, or presents credible evidence that they have the intent to harm someone, then the restriction of freedom to own a gun placed upon them by society sounds reasonable. My beef is with the preemptive restrictions being suggested for all people regardless of whether or not they have shown irresponsibility or intent to harm. I think that is an overreaching effort of society in the name of the public welfare.

      But really what it comes down to is that I’m more concerned about the process used and the implications of total control that I see at play. I do tend towards conspiracies when they suggest an “evil faction” in the government. I really liked the early seasons of the X-Files. If I’m a daydreamer then so be it. But I think there is evidence that suggests that there are factions of government that would be happier regulating safety and security rather than teaching people appropriately and then letting them govern themselves, being aware that it could result in damage and harm to society and individuals. But that’s the cost of freedom, in order for all of us to have freedom we have to accept that some will misuse that freedom. I don’t know of any other way that would be just.

      At any rate, there may be factions like I’ve described, and I personally disagree with them. So I express my opinion, something we have the right to do, also the responsibility. Just as everyone who disagrees with me, or who I disagree with, not trying to imply objective authority on one opinion or another, has the right and responsibility to express personal opinion. I think it is great that we can all have different perspectives and have discussions. As long as we can get over our biases and be forgiving of others who are trying to do the same thing.

  3. Anonymous says:

    In the days of the colonies, a father had a modern weapon for the times, to protect family and self from anyone who chose to disturb the right of liberty in that man and his family. If he had a better weapon to improve his capacity to protect with, wouldn’t he use it? If local government were to decide to restrict the weaponry available to the man, what might that do to his ability to protect self and family? If local government claimed they could step in to protect, how could they do better than the man already at home with available weaponry? “Time is of the essence” seems to improve the family’s chances of survival when a weapon is at the ready- and a better weapon would certainly hasten the survivability. Individual action to protect self tends to be a crime today, whereas immoral, evil actors in the neighborhood strive in disobedience, as well as relish in the advantage of local government restricting weapons for self-protection. If there were no Constitution to protect man’s right to protect self, justice should lean on the moral right to life and liberty, would it not? Guessing our justice system is flawed if a simple individual right to protect self is being diminished. John Adams is then profoundly prophetic.

    • paulbrodie says:

      Anonymous, I’m right with you. Obviously we want the best tool available for a job, and that’s essentially what guns and defense equate to. The question, then, is how do we reconcile the argument that people should be willing to give up some of the extras in the best interest of society at large? If we can effectively kill someone with a pump shotgun in defense of our homes and family, then why should we need to have anything more if the “anything more” poses a threat in the hands of some few people?

      I’m trying to ask that objectively, but my bias towards individual liberty makes it difficult. The theme playing across all of these discussions is “if the people won’t behave according to society’s rules under their own free will, even if it is only a very small minority, then society will step in and regulate people into compliance.” This is the heart of the discussion, it isn’t guns, it isn’t safety, although those are the faces put upon the issue. This is about control and one group saying that because some people are failing to live well we will force everyone to live well according to our guidelines. I do not support that line of thinking and never will. We need to be free to choose for ourselves, even if that means we’ll make huge mistakes and mess everything up. But we don’t have to wait until we make huge mistakes and mess everything up! We can start from the beginning and teach children correctly, thereby preventing the really disastrous mistakes and messes.

      I guess I got off on a tangent. John Adams was very prophetic in his warnings, as was George Washington and many others. They knew the capacity of man and warned against certain behaviors because of what they could see it leading to. We lost sight of that as a nation. It stopped being taught to the children so the children grew up with out it. And here we are.

      Thanks for the comment! Sorry I strayed a bit from the main topic, but I think it really does boil down to the issue of control vs. individual liberty, that’s the eternal struggle.

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