Yesterday U.S. District Judge Catherine C. Blake issued a ruling upholding a package of gun regulations in Maryland that limits handguns to no more than 10 round magazines, and bans 45 guns including the AR-15. According to a report in the Washington Times, Judge Blake agreed with government lawyers who claimed the banned guns were not protected under the Second Amendment because they are “dangerous and unusual”. The 47 page ruling issued by Judge Blake makes it clear that she has a fundamental misunderstanding of the Constitution, the proper role of government, and of the origin of our rights.
It is important for federal judges and other politicians, particularly legislators, and for the citizens who elect them to have the proper understanding of four important words – rights, freedom, authority, and power. All of these words come into play when discussing the Constitution and the proper role of government.
The first of these words is “rights”. With regards to our Constitution, the word must be used in the same context as it was used by those who wrote that document. They believed in Natural Rights as described by John Locke and other philosophers. Natural rights are those that come from nature or God regardless of nationality. They are by definition, human rights and are what the authors of the Declaration of Independence referred to when they said "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..." The word “unalienable” refers to the fact that government did not grant these rights, and therefore could not take them away.
“Freedom” in this context refers to our ability to exercise our natural rights. Every human being is born with the same natural rights, but it is obvious that relatively few have the ability to freely exercise them. To varying degrees, their freedom is restricted by their governments. By definition, to govern means to restrict freedom, and in a civil society it does become necessary to have some government of our freedom to ensure that everyone is equally free to exercise their rights. Our Constitution was written to establish a form of government specifically intended to protect our freedom to exercise our rights. Contrary to what some would believe, the Bill of Rights did not grant us any rights, rather it gave the federal government the responsibility to protect our freedom to exercise the rights we already had.
“Authority” was given to the three branches of government in the Constitution to enable them to carry out the responsibilities they were given. The responsibilities of each branch were specifically enumerated along with the authority necessary for them to effectively do their job. The Founders made it clear that unless the government was given a particular responsibility it had no authority to do anything. The limitations thus put on the government reflected the Founders’ belief that government should be limited in order to protect freedom.
“Power” is the ability to restrict something or someone, and in its most basic form comes at the point of a gun. Power is necessary to facilitate the exercise of authority, but the power given to the government was intended to be limited to only that which is necessary to exercise that authority. Any exercise of power outside that authority is an unconstitutional limitation of our freedom. The founders understood that it is in the nature of government to try to grow its authority beyond that which was intended. Since “We the people” created this government to protect our freedom, we the people have authority over the government, and knowing this the Founders recognized the need for us to have the power to restrict that government to its proper role; thus they included the Second Amendment in the Bill of Rights.
The Founders did not however, include a “dangerous and unusual” clause to the Second Amendment. Any weapon that is dangerous in the hands of the citizens is even more dangerous in the hands of an over-reaching government. What Judge Blake either doesn’t understand or chooses to ignore is the fact that neither she, nor the State of Maryland, nor the Federal government has the authority to deny anyone the right to keep and bear arms. They do have the power to do so, but in order to wield that power they must exceed their authority and become what the Constitution was written to prevent.
James Willis