Do Americans really have the right to bear arms if the police shoot armed citizens?
It is a question loaded with history. Some of that history revolves around the very way the nation came into being — personal firearms staved off certain death at the hands of a tyrannical crown bent on exacting vengeance against rebellious colonists. Other events in the American history of self-defense are sordid and complex — slavery and corresponding legislation to restrict what could be carried and by whom. One thing is certain, the issue of the inalienable right to keep and bear arms is rubbing up against governmental agencies that continue to find ways to make gun ownership and inherent self-defense in the public square a more difficult threshold to clear. It raises the question: do Americans really have the pre-existing right to keep and bear arms?
The short answer is yes. At least, in theory — and according to the plain language that enshrines the right against government infringement. The practical answer is more complicated. Four of the original states had gun rights protections in their state constitutions predating the American constitution. Nine additional states drafted similar protections from government infringement by 1820.
At the same time, three of the founding states have yet to guarantee the right to keep and bear arms to their citizens. At present, forty-four states have some version of gun rights in their state constitutions. Yet, understanding which states recognize the boundaries for government oversight answers only part of the question.
Bearing arms has deep historical roots. Noted conservative author Charles Weisman wrote, “[t]he right to bear arms is older than the right to freedom of religion, speech, press, or assembly.” It goes at least as far back as the ancient Greeks and Romans. The earliest known documented legal standard guaranteeing the right was written in 1181 A.D.
For Weisman and other gun rights supporters, the issue is as much moral as it is legal. Setting aside the foundation of English common law — or American common law, for that matter — individuals have a moral right to defend themselves. Equally important is the moral obligation to protect others, be they loved ones or defenseless strangers. In the landmark Heller case, Justice Scalia presented the majority opinion, unleashing a robust body of evidence supporting gun ownership and its correspondent usage. Still, gun control zealots hide behind the false veil of legal precedent, paying little mind to the constitutionality of such laws.
In 2004, The Fordham Law Review published a forty-four-page screed extolling the “virtues” of gun control. While the thesis is well-sourced and based on historical precedent, it rests on two faulty premises. The first is that all law must be constitutional and just, else it wouldn’t be law. Ample evidence from the same historical period readily proves the lengths to which lawmakers went to deny “blind justice” under the law. The second premise is more abstract yet still implied; something deemed legal or illegal should remain that way. If that were true, America would look much different right now — what with only white males enjoying the liberty to vote and hold office. The most “reasonable” passage the authors could muster acknowledges the dual roles of the Second Amendment:
“[R]ecent scholarship strives for a more holistic reading of the Second Amendment. According to this view, the right protected by the Second Amendment is neither a private right of individuals nor a collective right of the states. Perhaps the best way to describe these alternative models would be to characterize them as part of a new paradigm which views the Second Amendment as a civic right.
A competing historical review — The Human Right of Self-Defense — was published in 2007 in the BYU Journal of Public Law. The treatise maintains an objective approach to the subject, staying close to its central theme — “self-defense is a fundamental human right.” Its conclusion presents the challenge of balancing the moral and legal framework for a right so often questioned:
“No government has the legitimate authority to forbid a person from exercising her human right to defend herself against a violent attack or to forbid her from taking the steps and acquiring the tools necessary to exercise that right.
And all of this is a prelude to understanding the context of gun rights in 2021. Most Americans recognize the unique role firearms have played in shaping the nation from before its conception. Americans don’t need to quote Blackstone, Hobbes, or Locke, to know that rights are fundamental to human existence. Thirty-five states have some form of Stand Your Ground law permitting the reasonable use of force to stop would-be violent attacks on otherwise peaceful residents. It speaks to the very essence of what it means to be an American: each man knows best the danger that confronts him and must act to ensure his own safety.
Despite these truisms, a web browser search using the phrase “police shoot armed man” turns up article after article of deadly encounters. Of course, “the deceased had it coming,” some might say. “If only they’d followed the officer’s orders,” is another frequent rationalization. It runs contrary to Americans’ inviolable right to keep and bear arms in most places across the country.
How, then, do Americans reconcile fundamental, pre-existing liberties that an agent of the state can so easily ignore? Are Americans only free to exercise their rights as long as the state deems it safe? Are some citizens freer than others?
Each of these questions is a stumbling block to addressing the more significant issue: do Americans really have the right to keep and bear arms?
Naturally, when an officer’s life — or that of an innocent person — is in immediate peril, force is a reasonable outcome. At the same time, owning and carrying a firearm does not equate to using that firearm. If a man abuses his right, he jeopardizes any possible future use of the right and his own life in the process. Nor are the officers at fault for choosing the lesser of two evils when their own lives hang in the balance. Still, the questions haunt the country. The authority to decide who lives and dies before having a case heard in court should frighten all reasonable people.
Every free citizen should enjoy the same level of liberty afforded them by Their Creator. Demographic or socioeconomic features should never enter into any equation that determines who is “permitted” to exercise their fundamental human rights. Regardless of whether a person respects the right of his countrymen to keep and bear arms, the constant erosion of this right portends a less-free future where other “rights” become downgraded to privileges in the name of public safety. If Americans believe that self-defense is a fundamental human right, exercising that right by owning and carrying a firearm has to be jealously guarded for even the lowest and meanest of society’s free men. Anything less is tacit approval that such rights may exist in theory but not in practice.