Our good friend Eric Foner has just published a book, The Second Founding, which gives a concise and compelling explanation for how the Federal Government got into the business of defining our basic rights. Which makes this book required reading for everyone who wants to have anything to say about guns and gun violence, since so much of this debate turns on the issue of gun ‘rights.’ If you don’t believe me, just read any of the news accounts of the demonstration which took place in Richmond, VA on MLK Day to protest a new law that Trump claims is an infringement on gun ‘rights.’
The Federal Government first started defining Constitutional rights following passage of the 13th, 14th and 15th Amendments following the end of the Civil War. These Amendments ended slavery (13th), defined citizenship as a birthright (14th) and granted universal suffrage to all male Americans. Foner refers to the passage of these Amendments as a ‘second founding’ because these laws (to quote a Republican Senator from Missouri) “made the liberty and rights of every citizen in every state a matter of national concern.”
Foner points out that none of these fundamental Constitutional changes would have taken place were it not for the fact that Southern legislatures were dominated by Black officeholders from 1867 through 1877 when Reconstruction came to an end. But precisely because Reconstruction ended only ten years after it began, the Civil Rights laws passed in 1866 and 1875 to give some legal teeth to the Amendments, were either watered down in court decisions or simply ignored.
Both civil laws were attempts to define what ‘rights’ would be protected under the Constitution once the founding document contained protections which applied to every male citizen in the land. The 1866 Act enforced the implementation of laws that covered the following rights: “to ‘make and enforce’ contracts, own property, testify in court, sue and be sued, and ‘enjoy the full and equal benefit of laws for the protection of persons and property.’” (p. 64.)
See anything here about self-protection? See anything here about armed, self-defense? You won’t find any reference whatsoever to that terminology in the entire text of the Constitution or any of its Amendments, not even in the blessed 2nd Amendment from which all gun ‘rights’ allegedly spring forth. When the NRA proclaims itself to be the ‘oldest civil rights organization,’ is it referring to the rights embodied in the 14th Amendment and enumerated in the Civil Rights Act of 1866? No. It’s not referring to anything other than what a clever advertising agency figured out would help promote the sale of guns.
In fact, if you take the trouble to read the 2008 Heller decision where our late friend Tony Scalia propounded his view of gun ‘rights,’ you will note that it is not only a very narrow definition of what the 2nd Amendment says a gun owner can do with his guns (he can keep one handgun in his home) but it’s far from being an uninfringeable right because the government has great leeway in determining who can and cannot own guns.
Not only are gun ‘rights’ not mentioned anywhere in the Constitution, nor in any of the federal laws that have been passed to define or enforce Constitutional texts, there is also no mention of the other hallowed Gun-nut Nation ‘right,’ i.e., the ‘right’ to self-defense. When the Constitution talks about being protected from harm, the reference is to equal standing in the courts, not to passing a background check so that you can walk around with an AR-15 on your back.
There’s also the non plus ultra for carrying your Glock, which is that self-defense is a ‘God-given right.’ I hear this all the time from my Gun-nut Nation friends and my answer is simply this: If you want to live in a country where laws are first and foremost the handiwork of Almighty God, move to Iran, okay?
Foner’s book isn’t about guns. It’s a solid work about how the word ‘rights’ should be defined and used in any important discussion about current events. In this respect, the way our friends in Gun-nut Nation use the word fails both historical and legal tests.
Jan 27, 2020 @ 11:40:27
I think if we want to discuss the idea of rights and where they came from, one has to go back to the founding of the Republic or even farther to the development of the idea of natural rights, since we would not have ratified the Constitution had we not enumerated and protected in the Bill of Rights those “natural rights” that the Founders were aware of but modern Progressives seem to have forgotten.Government does not grant these rights. Government is prohibited from infringing on them.
Jan 27, 2020 @ 14:00:58
Progressives care very deeply about rights – both natural and civil. But in this imperfect world often pragmatic circumscriptions of some rights become necessary.
Jan 27, 2020 @ 12:38:03
Citing a 19th century law about the rights of blacks in America is pretty foolish, given that it wasn’t until 1964 that the civil rights act was passed, and people of the African American Community still claim there is discrepancy in their rights.
Jan 27, 2020 @ 14:10:37
Khal mentions “natural” rights. There clearly is a natural, or God-given, right to self-defense.
The Bill of Rights discusses ‘civil rights’ – what Blackstone called “auxiliary” rights way back (I think) in the 1720’s.
Blackstone said something like the auxiliary (or civil) rights are there to protect the natural ones. And I think that’s what underpins the our current concept of rights.
Jan 27, 2020 @ 14:43:03
Khal, Tom, Mike. Can I trade in my right to one handgun for home defense for one Kentucky Rifle for the same purpose? They’re not exactly “in common use” anymore.
Jan 27, 2020 @ 19:12:26
Forgive my Eurocentric viewpoint, but I’ve been looking for the answer to my question in the wrong place. And my question is:
“Why does the US of all the former British Colonies have a belief in gun rights”.
Australia, which is the most similar, has had rebellions, yet their reaction to the Port Arthur Massacre was the exact opposite of what happens in the US. The US body count rises, yet the fallacy of “gun rights” lives.
Sorry, but no where else in the former British Colonies does the toleration for the fallacy of gun rights exist. But that is due to US love of its creation myths.
And its toleration of propaganda. Because that is why the US has a gun problem. It believes in something which is obviously wrong.
Jan 27, 2020 @ 19:53:59
Laci,
You raise an important question. I’m no historical expert but the right to bear arms, which is based on the traditional right to bear arms from Britain, is affirmed in our Constitution. Other British realms either have no Constitution or, if they do, apparently no right to arms within those documents.
In other British-based countries when gun violence becomes unacceptable the government there passes laws to improve things, just as you mention.
Here in the U.S. probably all the same measures can be constitutionally applied but our NRA and other such groups are making a fortune fear mongering. And what the preach is, indeed, propaganda.
Interestingly as an aside, if you study how law & order was administered on the frontier in Australia & Canada you’ll see that the approach was quite similar. It was very organized, professional with well-trained peace officers – para-military in fact.
On the U.S. frontier it was typically quite the opposite.
Jan 28, 2020 @ 09:34:48
Rebel as they may, they are still subjects to the Crown. Rights are really moot when you are subject to an un-elected bloodline.
Jan 28, 2020 @ 10:02:39
Very true. Hopefully that sort of threat to humanity is forever gone from the Western World. (Hopefully.)