A Better Defense For The Second Amendment?

A few days ago the Heritage Foundation released a lengthy report on the fight for our right to keep and bear arms entitled “Conservative Defense of the Second Amendment Falls Short: Needs-Based Defense No Longer Sufficient to Preserve Citizens’ Right to Self-Defense” authored by former congressman Bob Barr.

While the report is far too long to quote in its entirety here, I’d encourage every Second Amendment activist to look over Barr’s study, which makes the argument that gun owners don’t have to justify their exercise of the right to keep and bear arms. Instead, “the onus is—and should remain—on government to prove, under the strictest of scrutiny, that any curtailment of a constitutionally guaranteed right is for the overall public good without any undue impact on the ability of individual citizens to preserve their life, liberty and property as they see fit.”

Barr notes that the courts offer no guarantees of protection for the Second Amendment, though he too is hopeful that the Supreme Court will end its decade-long reluctance to address the right to keep and bear arms in the near future. Still, even if SCOTUS does take a 2A case (ore more) in the coming months, gun owners must continue to engage in the legislative process.

Conservatives should therefore increase their focus on a vigorous defense of gun rights at the local and state level, whence offending laws and court opinions continue to emanate. As superficial as it sounds, conservatives would not need last-resort judicial relief for gun rights if these laws did not exist in the first place. To build the foundation for such vigorous defenses—which can withstand the finely-honed tactics of anti-gun zealots developed through decades of practice—conservatives first must understand the historical and philosophical genesis of the Second Amendment. Only then will they be able to effectively advocate for gun rights going forward.

While the addition of three Supreme Court justices with solid Second Amendment bona fides provides firearms advocates with renewed hope for judicial support extending beyond the bare bone parameters of Heller and McDonald, an efficacious defense of the Second Amendment still requires broad-based understanding of the historical and philosophical underpinnings of the Second Amendment to ensure that the issue is “lifted” to the level at which the Court will take such cases—and then actually decide them.This will significantly determine the future of gun rights in the coming years.

Barr then provides a detailed history lesson on both the right to keep and bear arms and the efforts to restrict that right, starting with the pre-revolutionary period in the United States and continuing on through today. As the former congressman argues, the modern gun control movement post-Heller is now intent on two strategies; confining the right of armed self-defense to the home while placing as many restrictions as possible on the exercise of that right through gun bans, licensing laws, and the like.

The Left’s twisted logic behind these restrictions rests on two fundamentally wrong principles: (1) the claim that the public is necessarily endangered by the presence of guns outside private residences; and (2) the claim that the duty of protecting people in public falls to police, not private citizens.

By reason and by nature, the responsibility of personal protection falls first on the shoulders of the individual—regardless of where that responsibility is exercised. Our Founding Fathers and our courts, too, recognized this principle.

The United States Supreme Court has ruled clearly that the police have no duty to protect the public (unless, that is, an individual is in the custody of the government). Chief Justice William Rehnquist made this clear in DeShaney v. Winnebago Cty. DSS, writing in the majority opinion that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.

As to the first point, the data simply does not hold up to the level of scrutiny required in limiting this natural right. Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit said exactly this in his majority opinion in Moore v. Madigan (2012), in which the court struck down the state of Illinois’ “no-issue” concealed carry law. “A blanket prohibition on carrying gun [sic] in public prevents a person from defending himself anywhere except inside his home,” said Posner. “So substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.

Indeed, whatever logic is considered to undergird the argument that the Second Amendment applies only to self-defense inside the home quickly falls apart under even the most superficial scrutiny. For example, as Posner says, “to speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage,” therefore “a right to bear arms thus implies a right to carry a loaded gun outside the home.”

Furthermore, Posner suggests, quite logically, that in a city like Chicago, the greater danger to citizens is on crime-ridden streets in rough neighborhoods, not “on the 35th floor of the Park Tower.

The intent, purpose, and scope are all manifest in a commonsense reading of the Second Amendment, none of which supports the idea that firearms were meant to be locked away in a bedroom closet lockbox. The right to self-defense does not get “put on hold” simply because a citizen steps across the threshold of his or her front door and onto the sidewalk. This is especially the case if police cannot practically or legally be counted on for protection. Only robust concealed and open-carry laws fulfill the state’s obligation to protect a citizen’s natural right to self-defense as required by the Second Amendment. That many conservatives afford no or only lukewarm support for firearm carry laws simply plays into the hands of the Left.

I don’t know that I fully agree with Barr’s assertion that many conservatives are indifferent to the right to carry. There are now sixteen states that have adopted permitless carry (soon to be seventeen), and only eight states still have subjective “may issue” carry laws on the books. I don’t think the right-to-carry revolution would have started or continued for decades if there was only lukewarm support for the the right to bear arms on the part of conservatives.

Even though I might not agree with all of Barr’s conclusions, I think he’s absolutely correct when he says that gun owners and Second Amendment advocates can’t just play defense. There’s a great deal of good information and suggestions in his examination of the issue, so when you have some free time, I’d encourage you to read the full report and digest for yourself what Barr has to say.

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Oct 24, 2021 2:30 PM ET