The Right to Self-Defense Affirmed

John Stossel
Wednesday, July 09, 2008

"Repeal the Second Amendment," The Chicago Tribune editorialized.

"The Supreme Court on Thursday all but ensured that even more Americans will die," said The New York Times.

"[T]he Second Amendment protects the right to bear arms only in relation to service in a state militia." added The Washington Post.

Those are a few of many editorial expressions of disgust from the mainstream media over the Supreme Court's ruling that when the Bill of Rights says that "the right of the people to keep and bear arms shall not be infringed," it includes the right to possess guns for self-defense, and not merely a right to be armed as a member of the National Guard.

What has caused so much confusion about the Amendment is its preface: "A well regulated militia, being necessary to the security of a free state ..."

In striking down Washington, D.C.'s three-decade-old handgun ban, Justice Antonin Scalia wrote that the preface merely "announces the purpose for which the right was codified: to prevent elimination of the militia" by the new national government. "The prefatory clause," he continued, "does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting."

But for the four dissenters, the preface limits the right to keep and bear arms to military purposes. In their view, if the Framers of the Second Amendment wanted private individuals to have guns for hunting and self-defense, they would have said so.

Justice John Paul Stevens points to "the Second Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense."

I suppose one could argue that the omission indicates the Framers of the Constitution didn't mean to protect that right. But I find that hard to believe. The right of self-defense -- against homegrown tyrants as well as common criminals -- was much on the minds of Americans in the late 18th century. Thomas Jefferson said, "[W]hat country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."

But there is something else that many analysts of the decision have missed.

The Bill of Rights did not create rights. It acknowledged them. Right before the July 4 holiday, it shouldn't have been necessary to remind the four Supreme Court dissenters of what Jefferson wrote in the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. ... "

The Framers of the Second Amendment did not say, "The people shall have the right to keep and bear arms." They wrote, "the right of the people to keep and bear arms shall not be infringed."

This isn't just theory. The Cato's Institute's Tom Palmer, an early plaintiff in the D.C. gun case, told "20/20" he is alive today because he was carrying a handgun when he was approached on the street by some toughs. "They told us, 'We're going to kill you.' I showed them the business end of a pistol. They turned around, went away."

The four dissenting justices fear the Supreme Court's decision will unleash a flood of gun violence. Unlikely. "Criminals do not have a problem getting guns," Palmer reminded me. It's law-abiding people who suffer when guns are banned.

The victims of gun crimes are easy to count. What cannot be counted are the lives saved because would-be victims were armed. Palmer's confrontation is one of many that didn't make the news.

He asks, "If someone gets into your house, which would you rather have, a handgun or a telephone? You can call the police if you want, and they'll get there and they'll make a crime report and take a picture of your dead body.

"They can't get there in time to save your life."