Deathly rights

Weird, deadly American politics. Democrats believe children should be murdered in the womb; Republicans they should be murdered in the classroom.

It is incomprehensible to those of us in the old country. Two political parties have monopolised all, and come to assert in absolute terms positions their members would not naturally believe.

The latest confected outrage across the pond is about a rule not found anywhere in their Constitution, but once imposed by judges anyway. The energy expended on this suggests more symbolism than substance, and its suggests to the rest of us a fatal decay amongst Americans in the very concepts of law and of democratic rule, which perhaps is now being put right. Of more immediate substance is something which is in their Constitution as a principle of freedom but the effect of which is to eliminate freedom: the right to bear arms.

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.

I would not be seen as an enemy of guns as such – I happen to be an accomplished shot. It is the flooding of society with the means for murder at one remove, conscienceless murder, which is impossible to bear. In Britain and in Europe, guns are heavily restricted and we can walk free with little fear: the United States are awash with them and in many places fear is the natural state.

There are long debates about what the framers of the Constitution meant, seeing the war-begot historical background and asking how to pair the first half of the sentence, concerning the need for a militia, with the second. The plain words remain though that “the right to bear arms shall not be infringed”.

Many commentators have run through the historical background, which goes deeper than the mood in 1789. The Constitution and its first amendments were written by thinkers and lawyers schooled in the over-optimism of the Enlightenment, and in the afterglow of a war that seemed to them to be a war between the old world and the Enlightenment itself (though in truth the new learning was just as much a cause of the British ministers’ inability to be flexible).  In such an atmosphere the idea would be irresistible that a people who are armed will better defend liberty. A hundred years before, in 1688, King James II had been overthrown by rebellions in England and in New England, and Parliament declared in their own Bill of Rights that the Crown may not disarm the people (or in fact, may not disarm Protestants while arming those with allegiance to Rome).

If the Enlightenment idea of man’s ultimate goodness were true, then maybe there would be justification for trusting “the people” with the means to end others’ lives in a moment without effort.  That idea is not true though: Hobbes showed  this, and so has human history at every stage. Mankind’s truest reflection is seen in those who in bestial fury slew millions in their Lebensraum, in Armenia, in the camps, in the gulags, the lao gai, and in Rwanda, and in the cities of today’s America.

The American Constitution does not command the massacres it has overseen, but it is an accessory to murder.


If political debate made sense, there could be a broad spread of opinion across America’s political parties. There is no reason why one political party would across its membership have a rock-solid, extremist position on the issues, and the opposite on the other side. The two main parties are relics of the Civil War in any case, their raison d’être of each lost long since – when the Democrats stood for slavery and the Republics for abolition. That is all gone.  The politicians all live in one society and can take broader views. They all have families like everyone else. No one should have to fear whether their children will survive the school day.

The mythology of the Bill of Rights.

The Bill of Rights has a sacred place in the American understanding underlying all their understanding of liberty. Any trespass upon those rights may be seen as sacrilege and the beginning of the end of all liberty. They are at the heart of what it is to be American, an identity artificially cultured over two and a half centuries. Having placed the right to bear arms in the Bill of Rights, it is within that temple.

Those who hold to that opinion need to step back and take a deep breath.  The ‘Founding Fathers’ are the secular gods of the Republic, but they are not actual gods, and are not infallible, nor are their words holy writ.  Where a provision in the Bill of Rights actually decreases freedom, by making citizens live in fear, it is the enemy of what the Founders wanted.


Gun control measures do not work – at least not those tried to date. There is no statistical evidence they work. Tests and cooling-off periods before purchase are useless, and have never stopped any murderer from getting his hands on a gun.  It is ownership and possession of a gun that matters, and this cannot be interfered with while the Constitution says what it does.

The Constitution is not unamendable. It is hard to amend, and requires a political consensus, but it is not impossible.  Reformers may take a lesson from the National Temperance League a century ago: it would have been unthinkable to call for the Constitution to be changed to ban alcohol across the nation, but they had the audacity and a slogan: National Constitutional Prohibition, which any politician had to declare himself for or against. They succeeded. They should not have, but they did. A measure more modest and more beneficial might too. It would first though have to undermine from beneath those solid political positions, to become the cry of the popular voice in every party.

One leading American jurist suggests amending the Second Amendment to add a rider to the right to bear arms “when on militia service”. That would do the trick.

There is an alternative.  I am not American and may be dismissed by those who are, especially lawyers, but bear with me.

When the Bill of Rights was passed, it bound only the Federal government and Congress, not the states. Even the First Amendment, the foundational injunction to freedom of speech is “Congress shall make no law…”, not the states. States and towns used to restrict the bearing of arms (it was enforcement of such an ordnance in Tombstone that led to ‘the Gunfight at the OK Corral’.) Only in the 1920s, so I read, did the Supreme Court imply its application to bind the state authorities too, using a strained interpretation of the Fourteenth and Fifteenth Amendments on equal rights and due process. It is then just one judgment away from being overturned.

Not every Amendment in the Bill of Rights has been held to bind the states. An article specifically on Federal procedures would not, presumably.  Here then is an opportunity:  an Amendment could declare that the Second Amendment is not binding on the states: that way the states can make their own laws on the possession of deadly weapons. It could to be excluded in federal jurisdiction in the territories and District of Columbia too.

The land nevertheless is awash with guns – more guns are owned than people to own them. They cannot be abolished as criminals will continue to bear arms whatever the law says. It should be possible though to empower the police to stop the appearance of potential murder on the street, and make young men pause before taking that fatal step.

See also


Author: AlexanderTheHog

A humble scribbler who out of my lean and low ability will lend something to Master Hobbes