Napolitano: The 2nd Amendment Isn't A Gift From The Government

Judge Andrew Napolitano is bringing the heat in a stinging column for the Washington Times, rebutting and refuting the arguments by gun control activists that they can simply ignore the text of the 2nd Amendment and Supreme Court decisions and enact whatever anti-gun laws they want.


The U.S. Supreme Court has twice ruled in the past 11 years that the right to keep and bear arms is an individual pre-political liberty. That is the highest category of liberty recognized in the law. It is akin to the freedoms of thought, speech and personality. That means that the court has recognized that the framers did not bestow this right upon us. Rather, they recognized its pre-existence as an extension of our natural human right to self-defense and they forbade government — state and federal — from infringing upon it.

It would be exquisitely unfair, profoundly unconstitutional and historically un-American for the rights of law-abiding folks — “surrender that rifle you own legally and use safely because some other folks have used that same type of weapon criminally” — to be impaired in the name of public safety.

It would also be irrational. A person willing to kill innocents and be killed by the police while doing so surely would have no qualms about violating a state or federal law that prohibited the general ownership of the weapon he was about to use.

The judge is absolutely right. And frankly, we know that even if an “assault weapons ban” managed to get millions of legally owned guns out of the hands of Americans (which it wouldn’t), the monsters in our midst would just adapt. We just saw a twisted individual take more than 30 lives by setting fire to a studio in Japan. We’ve seen a wanna-be jihadi mow down 86 people and injure more than 400 with a truck in France. We don’t think we’d see new tactics used by the twisted individuals here at home intent on destroying as many innocent lives as possible?


The judge also had a strong rebuke to those proposing or supporting red flag laws.

The president also offered his support for “red flag” laws. These horrific statutes permit police or courts to seize guns from those deemed dangerous. Red flag laws are unconstitutional. The presumption of innocence and the due process requirement of demonstrable fault as a precondition to any punishment or sanction together prohibit the loss of liberty on the basis of what might happen in the future.

In America, we do not punish a person or deprive anyone of liberty on the basis of a fear of what the person might do. When the Soviets used psychiatric testimony to predict criminal behavior, President Ronald Reagan condemned it. Now, the president wants it here.

We have civil commitment laws on the books in states across the nation. If we believe that someone is truly a danger to themselves or others, isn’t that a more appropriate place to seek help rather than a court hearing where a judge only hears one side of the case before making a determination about whether or not someone poses a threat to themselves or others?

As Napolitano points out, if one of our rights is gutted by ignoring the Constitution, you set a precedent to the same to any or all of the rest. If you think the 2nd Amendment is old or outdated, don’t ignore the Constitution. Abide by it. Try to repeal the 2nd Amendment. Of course that’s hard, which is one reason we haven’t seen a serious effort. We’re also dealing with some folks who really don’t care much about the Constitution. It’s an old and outdated document in their opinion, which should be ignored whenever possible and completely changed at the first given opportunity. Unfortunately that means that Napolitano’s column, as good as it is, will likely fall on deaf ears.


Join the conversation as a VIP Member