Right after the Las Vegas massacre, New York Times columnist Bret Stephens demanded that the Second Amendment be repealed. Mr. Stephens recently left the Wall Street Journal’s conservative editorial page, where he had been a hawkish voice on foreign affairs, and this burst of constitutional punditry has led to accusations that he is pandering to his new audience.
I doubt this is fair. Certain prominent “conservative intellectuals” have long displayed a notable lack of enthusiasm for the right to keep and bear arms. Nor is Mr. Stephens the first to advocate repeal of the Second Amendment. George Will and Charles Krauthammer, both of whom are Fox News regulars, did so many years ago. Their views have been subjected to a detailed critique, much of which can be applied to Mr. Stephens. Some of it is worth repeating now.
Mr. Stephens begins by saying that “I have never understood the conservative fetish for the Second Amendment.” His use of the word “fetish” is presumably not meant as sexual innuendo. Rather, I suppose, he means that the conservative defense of the Second Amendment is irrational or superstitious. In fact, it is Mr. Stephens himself whose flawed logic exhibits an irrational belief in magic.
He first tries to show that America’s armed citizenry is more dangerous than a disarmed populace would be. His evidence is that there are more unintentional firearms deaths than there are justifiable homicides. Ergo, “more guns means less safety.” Is he not aware of the fact that merely displaying a gun when threatened with criminal violence is an effective and very common form of self-defense? And could he really be unaware of the deterrent effect on crime that results when potential victims are armed?
Two days after his Second Amendment column appeared, Mr. Stephens denounced those who advocate nuclear disarmament. As he rightly pointed out, such thinking after World War I disarmed only the nations that believed in disarmament: “In the name of peace, the good left themselves increasingly defenseless, their allies and dependents increasingly anxious, their rivals and enemies increasingly ambitious and, in time, violent.” This is just another way of saying what supporters of gun rights have been telling us for decades, “When guns are outlawed, only outlaws will have guns.” How could he see the point so clearly in one context, but not the other? And all in the space of two days.
To his credit, Mr. Stephens (like Mr. Krauthammer before him) recognizes that the usual gun-control nostrums would have very little effect. Although he coyly avoids specifying exactly what restrictions he thinks would be effective and desirable, he boldly asserts that it is imperative to fundamentally change our legal regime by repealing the Second Amendment.
What exactly would this accomplish, and how? Until 2008, when the Supreme Court suddenly discovered the Second Amendment, the lower federal courts had effectively read it out of the Constitution. Although it had long been treated as a dead letter by the judiciary, Congress and most state legislatures had enacted few restrictions on firearms. As he implicitly acknowledges with a reference to the power of Presidents to choose Justices, the Second Amendment could effectively be repealed today only through a Supreme Court decision that restored the status quo that existed until 2008. But why would that legal change cause legislatures to behave differently than they did before 2008? Only a believer in fetishes would put such faith in the magical powers of a judicial decision.
Mr. Stephens also has some bizarre ideas about why defenders of the Second Amendment believe that the right to arms is valuable. “From a personal liberty standpoint, the idea that an armed citizenry is the ultimate check on the ambitions and encroachments of government power is curious.” Far more curious is his failure to acknowledge that the personal liberty protected by the Second Amendment is primarily threatened by the criminals in our midst, rather than by the government.
The fundamental importance of the right to arms was not an American discovery. Like our own charter of individual liberties, the English Bill of Rights protected the right to keep and bear arms. William Blackstone—the leading authority on English law for Americans of the Founding generation—called it one of the indispensable auxiliary rights “which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” This right, he said, is rooted in “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Blackstone’s language focuses on the commonplace oppression that results from government’s failure to control violent criminals rather than on the more exceptional governmental oppression that might call for armed resistance.
Blackstone’s analysis can be traced back to John Locke, the true father of our Declaration of Independence. In his Second Treatise of Government, Locke emphasized the fundamental natural right to defend one’s life against criminal violence.
[A] thief, whom I cannot harm but by appeal to the [civil] law for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defense and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable.
Locke’s doctrine of natural rights provided the justification for the American Revolution, and arguably underlies the American regime itself. I imagine Mr. Stephens would acknowledge this, even while he denies that the Second Amendment “is fundamental to the structure of American liberty.” But what use is the abstract right to life and liberty without what Blackstone called an “indispensable auxiliary right” that makes it meaningful?
Cesare Beccaria, another political philosopher who greatly influenced the American Founders, made the general point more specific when he warned against disarmament laws that would “put an end to personal liberty.”
[L]aws that forbid the carrying of arms . . . disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty—so dear to men, so dear to the enlightened legislator—and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
Beccaria’s analysis is every bit as valid today as it was when he published it in 1764.
Mr. Stephens mocks the contribution that the right to arms makes to preserving “personal liberty” by offering criminal behavior as examples of “Second Amendment activism”: the Whiskey Rebellion of the 1790s, the New York draft riots of 1863, the coal miners’ rebellion of 1921, and the Brink’s robbery of 1981. Cute. Mr. Stephens disregards the threat to personal liberty posed by violent criminals because he does not understand, or refuses to acknowledge, what Locke, Beccaria, Blackstone, and all of the American Founders understood very well.
Mr. Stephens does not explain how repealing the Second Amendment would lead to the disarmament of criminals. But his misunderstanding of American principles runs deeper than this particular example of fetishism suggests. Law-abiding citizens who arm themselves are exhibiting the moral temper appropriate to a free people. They do not regard their lives and safety as a gift from the government. Nor do they think they should wait for the government to come along and save them when their lives, or the lives of other innocent people, are threatened. When that spirit is finally squashed, as Mr. Stephens apparently wants it to be, bureaucratic government will continue to expand, violent crime will continue to plague our most vulnerable citizens, and genuine self-government—both personal and political—will become ever more illusory.
This sadly thoughtless newspaper column concludes: “The true foundation of American exceptionalism should be our capacity for moral and constitutional renewal, not our instinct for self-destruction.” Evidently, Mr. Stephens sincerely believes that the true foundation for such a renewal lies in surrendering the liberty that allows us to take responsibility for defending ourselves and other innocent people from violent criminals. Fortunately, the many millions of Americans who do not share his misunderstanding of American exceptionalism may prove to be a source of genuine moral and constitutional renewal.
