Embodied in the Second Amendment to the Constitution is the truth that self-governing individuals should bear the responsibility for defending themselves. The Amendment states,
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
This Amendment has generated a considerable amount of controversy among legal scholars.1 Some argue that the Amendment grants an “individual right” to keep and bear arms, while others believe that this right only applies collectively to those in the militia.
Without fail, however, most scholars ignore the foundational principles which are embodied in the Second Amendment. The law of self-government is almost entirely absent from the writings of Second Amendment scholars, and the right of self-defense, if mentioned, is only treated as a constitutional or historical by-product. Rarely does anyone ever treat self-defense as a natural right, or as one founding father said, “a primary law of nature, which . . . (is] the immediate gift of the Creator.”2 As a God-given right, self-defense is an unalienable right which is incapable of being surrendered or transferred. But to understand these principles and how they interrelate, one must first examine the “Laws of Nature and of Nature’s God.”
In 1776 the framers of the Declaration of Independence appealed to the “Laws of Nature and of Nature’s God.”3 They unanimously affirmed that these laws would define the legal rights and principles which would both justify their separation from England and help them establish any future government.
The framers understood the laws of nature and of nature’s God to refer to those laws which the Creator had revealed to man. Law was seen as God-given, not man-invented; fixed and permanent; binding everyone in every nation. Furthermore, the framers also believed that the laws of nature and of nature’s God explained the nature of man’s rights. Rights were God-given, not government-created. And the Declaration of Independence affirmed this truth by asserting that “all Men . . . are endowed by their Creator with certain unalienable Rights.” In short, the laws of nature and of nature’s God are crucial to understanding the essence of self-government and self-defense. The founders considered both principles to be divinely instituted and far-reaching in their application.
Three ideas which are reflected in the Declaration are the laws of nature, unalienable rights and self-government. What the Declaration has to say is important because it is the Charter of the United States.4 Any form of government established after the Charter must be consistent with its principles, Just as any corporate form of government must be consistent with its corporate charter.5 The founding fathers realized this indisputable legal maxim. In 1787, they drafted a Constitutional form of government upon which John Quincy Adams later observed, “was the complement to the Declaration of Independence; founded upon the same principles, carrying them out into practical execution, and forming with it, one entire system of national government.”6 In other words, the Declaration gives meaning to the Constitution. If the Declaration’s principles are separated from the Constitution, then the Constitution’s meaning is likely to reflect the transient whims of the majority, the highly vocal or a powerful elite. Both the Declaration and the Constitution are significant legal documents because both, by nature, comprise the covenantal foundation of the United States. Just as a corporate charter and constitution govern the corporation’s exercise of authority, so too the Declaration and Constitution set forth the legal and political principles that govern the national objects of the nation.
As an appendage to the Constitution, the Second Amendment must therefore be interpreted according to the principles found in the Declaration and Constitution respectively. Both documents, however, are only lawful to the extent they conform to the laws of nature and of nature’s God. For example, no science text book is accurate if it denies or ignores the existence of the law of gravity. Neither is a charter or a constitution lawful if its principles are contrary to the laws of nature.
Consequently, the laws of nature and of nature’s God are the foundation for any discussion of law and rights. This higher law declares that all human beings are self-governing individuals. And while the Declaration articulates the law of self-government, the Constitution in turn reflects the application of this law in a variety of contexts, one of which is found in the Second Amendment. The law of self-government is thus vitally important to any discussion of self-defense. To these matters, attention is now focused.
* Copyright © 1989, 2007 Erich M. Pratt. Used with permission.
1. A good example of the intense debate over the Second Amendment can be found in the following report: U.S., Congress, Senate, “The Right to Keep and Bear Arms,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong., 2d sess., 1982, Congressional Information Service, 5522.
2. Elbridge Gerry, “Observations on the New Constitution, and on Federal and State Conventions,” Pamphlets on the Constitution of the United States, ed. Paul Leicester Ford (Brooklyn: 1888), p. 4.
3. The first paragraph of the Declaration of Independence states,
When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation. [Richard L. Perry, ed., Sources Of Our Liberties (Chicago: American Bar Foundation, 1978), p. 319.1
4. Until 1776, the colonists were under the English charters. But in 1776, the colonists broke their ties with England and drafted a new charter — the Declaration of Independence. John Quincy Adams, reflecting upon this act, stated the following:
Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing . . . all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. (Emphasis added.) [John Quincy Adams, The Jubilee of the Constitution, (New York: Samuel Colman, 1839), p. 9.]
5. This analogy was borrowed from a lecture of Dr. Herb Titus, Professor of Constitutional Law, CBN University, Virginia Beach, Virginia, 17 December, 1986; The substance of this argument was set forth by John Quincy Adams in The Jubilee of the Constitution (cf. endnote number 4).
6. Adams, The Jubilee of the Constitution, pp. 11-12.