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Law Professors Make Case for Second Amendment Rights in Uncertain Times

Monday, October 19, 2020

Law Professors Make Case for Second Amendment Rights in Uncertain Times

Americans have made clear that they value their Second Amendment rights, especially during uncertain times. Faced with the COVID-19 pandemic and then widespread civil unrest, Americans have bought firearms in record numbers. Through September, the FBI had processed a record-setting 28,826,449 total National Instant Criminal Background Check System checks for 2020. With three months of the year still left, 2020 has seen 456,699 more checks than any previous year. In August, the National Shooting Sports Foundation estimated that roughly 5 million Americans purchased a firearm for the first time in 2020.

Now a trio of law professors from the George Mason University Antonin Scalia School of Law have released articles that highlight the importance of the right to armed self-defense during tumultuous periods and explain how the history of the Second Amendment makes clear that it was intended to preserve this right under the present conditions.

Professor and Executive Director of Scalia Law’s Liberty & Law Center David E. Bernstein wrote an article titled “The Right to Self-Defense in the Light of Law Enforcement Abdication.” As the name suggests, Bernstein Examines the critical role Second Amendment rights play when, as has been seen throughout the country, local authorities are unable or unwilling to uphold the law and maintain order.

Bernstein presents a direct challenge to those who have argued that modern policing has made the Second Amendment obsolete. Some of the many examples of this argument that Bernstein cites are laughable in light of what occurred this summer.

For instance, the professor points out that an amicus brief filed on behalf of ten major cities in the U.S. Supreme Court case McDonald v. Chicago contended, “In more urban areas that have the benefit of a concentrated and highly trained police force …, the need for individuals to arm themselves for self-defense is less compelling.” 

Another example Bernstein uses is a passage from a book by NYU Law School Brennan Center for Justice President Michael Waldman. Waldman argued against respect for the individual right to keep and bear arms by claiming, “twenty-first-century America differs profoundly from the time of the Framers Today, we rely on professionalized police departments to protect us from crime and unrest.”

Bernstein counters, “the looting, rioting, and general mayhem on display in the Summer of 2020 in cities throughout the United States, often unimpeded by law enforcement, buttresses the argument that a proper right to armed self-defense must include provision for law-abiding Americans to protect themselves outside their homes.” 

Following this thesis, Bernstein meticulously documents local officials’ abdication of their law enforcement responsibility in localities throughout the country. The well-cited tract should serve as an indispensable compilation of official inadequacy and neglect in the wake of 2020’s civil unrest. 

In his conclusion, Bernstein explains that “Mainstream liberals, who had previously been strongly on the ‘rely exclusively on police and not on a personal firearm for protection’ bandwagon, seem unwilling or unable to defend the importance, competence, and efficacy of the police” and that therefore, “there does not seem to be much of a constituency left for the argument that the right to armed self-defense has been rendered anachronistic by the development of professional law enforcement.”

Professor Nelson Lund authored an item titled, “The Future of the Second Amendment in a Time of Lawless Violence.” In this article, the professor takes on what he views as some courts’ exceedingly narrow cost-benefit analysis when judging the constitutionality of a gun control measure. Lund contends, “A constitutionally proper understanding of the public interest should make courts especially skeptical of gun regulations.” In Lund’s view, preservation of the liberal order is the properly understood benefit of a well-armed populace and that the Second Amendment is an integral part of the U.S. founders’ design.

Elaborating on this point, the professor notes,

The right to keep and bear arms, and to use them when appropriate, is a vital element of the liberal order that our Founders handed down to us. They understood that those who hold political power will always be tempted to reduce the freedom of those they rule, and that many of the ruled will be tempted to trade their liberty for promises of security. Those temptations are apt to be especially alluring when widespread criminal violence threatens both liberty and security. They may be even more alluring when such violence takes the form of sustained and repeated riots that reflect a serious breakdown of the social fabric.

To bolster his argument, Lund draws upon the sources that were familiar to the founders, including the work of Thomas Hobbes, John Locke and William Blackstone. Bringing these sources to bear on his thesis, Lund finds, 

Even when there is good reason to think that a regulation would cause a net reduction in deaths and injuries, such calculations are not a sufficient basis on which to create even a presumption of constitutionality. The principles of our regime, articulated in Locke and Blackstone and confirmed in the Second Amendment, have two related implications. First, I do not lose my right to the means of protecting myself merely because others are vulnerable to violent attacks, whether through their own choices or through bad luck. Beyond that, however, the rejection of Hobbesian absolutism in favor of political self-government depends for its ultimate success on citizens who possess the moral temper befitting a free people. Citizens who arm themselves are recognizing and insisting that their lives and safety are not a gift from the government, and that they claim responsibility for their own freedom and security 

In closing, Lund addresses the topic of civil unrest and how it relates to his argument. The professor states,

The single most foundational principle on which our liberal regime was founded is the inherent right of self-defense against violent assaults. The Second Amendment’s core purpose is to insulate that right from improper government interference. But protecting that right also serves a broader political purpose. An armed citizenry displays the spirit of courage and self-reliance on which genuine self-government depends. That spirit should be encouraged more than ever in times of civil unrest, and especially when governments have responded passively to mob violence.

Patrick Henry Professor of Constitutional Law and the Second Amendment Joyce Lee Malcolm wrote a piece titled, “Self Defense, an Unalienable Right in a Time of Peril: Protected and Preserved by the Second Amendment.” As with the Lund paper, Malcolm draws upon the philosophical influences of the founding fathers to explain that the Second Amendment was intended to protect an individual right to armed self-defense. The professor then explains how this right should be understood given the reality of official inability or unwillingness to control violent crime. 

Key to the understanding the Second Amendment, Malcolm notes, is understanding how our founding fathers’ English forebears understood the right to self-defense. The professor quotes Blackstone’s “Commentaries on the Laws of England” at length. Blackstone’s famous treatise explained, 

the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.

Malcolm points out that this same understanding of self-defense can be found in Locke’s “Two Treatises of Government.” In it, Locke explained,

This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; his preference be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.

Malcolm notes that the right to self-defense in scenarios where one cannot rely on official protection or adequate remedy following an attack, as outlined by both Blackstone and Locke, is part of what informed the founders’ in drafting the Second Amendment.

Bringing the topic to modern day, Malcolm points to the inefficacy of protective orders. In explaining the inadequacy of official remedies to prevent immediate violence, the professor cites that a “study posted in the Journal of American Psychiatry and the Law found 18% of protection orders had been violated and 50% of those with a temporary restraining order reported unwanted contact in that time frame while 75% of women reported.” Several other studies have shown a similar inadequacy of protective orders to prevent the type of violence contemplated by Blackstone and Locke.

Malcolm also examines the case law that makes clear an individual has no right to police protection from third party violence. Summarizing the U.S. Supreme Court’s decision in DeShaney v. Winnebago County, Malcolm explains that the Court found the Fourteenth Amendment’s due process clause “did not impose a special duty on the State to provide services for public protection against private actors.” Rather, as the Court explained, “The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” Given that an individual has no right state protection, such protection may not be used as justification to curtail the individual right to armed self-defense.

Professors Bernstein, Lund, and Malcolm’s scholarly contributions are worthwhile reading for all those interested in the history of the Second Amendment and how it relates to our current moment. NRA members and other gun rights supporters should read and share the important work of these respected scholars.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.