Gavel Slams Down Over Justice Stevens’ Second Amendment Argument

Alan Keyes Former Assistant Secretary of State
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In recent week’s I’ve written several articles lamenting the rampant tendency to mistake the meaning of the U.S. Constitution’s 2nd Amendment.  Sometimes it’s the result of ignorance. People who haven’t read the Constitution nonetheless feel passionately authorized to invoke its authority. Or people who have read it don’t bother to ponder the significance of its terms or the logic that governs their meaning. Of course, there are also a fair number of people, familiar with their logic, and therefore certain of their meaning, who hate and seek to discard Second Amendment on that account.

Justice John Paul Stevens recent op-ed calling for its repeal self-evidently places him among the haters. He pretends that the amendment, “for over two hundred years after the adoption of the Second Amendment, was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation,” as if the word “infringe” has neither meaning nor effect. But here’s how the first edition of Webster’s dictionary (the edition produced when the usage of the founding generation was still in vogue) defined the term:

INFRINGE: 1. To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done. 2. To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law. 3. To destroy or hinder; as, to infringe efficacy. (Little used.)

Obviously, all three aspects of its meaning convey the sense that a duty or obligation, authorized by voluntary agreement or law, cannot be violated, broken or otherwise left undone.  The word’s etymology is indicative, since it implies the abrupt termination of some ongoing action or activity.

A question naturally arises: What activity?  In the context provided by the previous words in the sentence, the answer comes: “the right of the people to keep and bear arms.”  So, “keeping (to have in one’s possession) and bearing (to carry about) arms” is the activity. How does this involve a ‘right’? The Webster’s edition we are using for reference gives the first sense of the noun ‘right as follows:

Conformity to the will of God, or to his law, the perfect standard of truth and justice. In the literal sense, right is a straight line of conduct, and wrong a crooked one. Right therefore is rectitude or straightness, and perfect rectitude is found only in an infinite Being and his will.  


Justice Stevens writes as if he is unaware of this definition of God-endowed right, or the priority given it at a time when people still revered the thought and usage of America’s founders.  By this definition, a right is a duty, informed by God’s will and required by His law. This happens to be the very idea of right taken for granted in the American Declaration of Independence. The latter forms a chapter of the law that substantiates the form of government in the United States (its organic law.)  According to the Declaration, the security of rights is the reason for the institution of government. If a right is, first of all, an activity in conformity with God’s law, then it is done by His Supreme Authority, as the source and sovereign of all existence. But what that authority obliges one to do, no subordinate authority has the right to interrupt.  One engaged in right-doing in conformity with God’s law must be left free to do as God commands.

Not coincidentally, the 2nd Amendment refers to ‘the security of a free state.’  Also, not coincidentally, when it refers to the “militia,” that term is modified by the expression “well-regulated,” which connotes what is done under a rule or rules in conformity with right action (i.e., well or rightly done.)  But if the first meaning of right alludes to the authority that comes first above all others, a “well-regulated” militia is not simply an armed body of people.  It is an armed body of people intent on doing right, in conformity with the will and law of God.

The argument and circumstances set forth in the Declaration of Independence epitomize the understanding of right, and the just powers of government that accord with right, on account of which America’s founding generation broke away from the rule of British King George III.  They were not authorized to do so by the 2nd Amendment, since it did not yet exist.  Rather they appealed to “the laws of nature and of Nature’s God,” the Creator and “Supreme Judge of the world,” “for the rectitude [rightness] of their actions.”

Like many of his cohorts, Justice Stevens probably bridles at the thought that, in matters of right and wrong, God enters into the picture.  He probably waves off the idea that there are rights antecedent to all positive law, including the Constitution of the United States; rights that no human power can justly pretend to give or take away.  But in its Ninth Amendment, the Constitution itself acknowledges and gives precedence to the primacy of these rights, when it says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

People who hate the Secondnd Amendment routinely deny and disparage “the right to keep and bear arms.” Like Justice Stevens, they are eager to assume the authority to take that right away.  But they can no more repeal it than they can repeal each human’s right to use the limbs God gave us all to preserve the life created and informed in us by His will.  Beset by material losses and bodily afflictions, the Bible’s Job still remembers the truth: “THE LORD GIVETH AND THE LORD TAKETH AWAY.”  This is the first premise of right in the Declaration. It is the ultimate meaning of right in the Constitution.  It is the principle of right that constitutes the very soul of our identity as one nation, one people determined, by God, to be free.

Those who hate this premise cannot repeal (i.e., recall, from the Anglo-French repeler, Old French rappeler “call back, …revoke”) the right it upholds.  Not, at least, as long as the people of the United States recall the name of God and His authority—not just in their minds or on their lips, but in their heart’s determination “to do right, as God gives us to see the right.”  Only in doing so do may we accurately be described as a “well-regulated militia.” It matters not whether the arms we wield be our limbs or our guns; the laser/phaser rifles of the future, or the spears and well-slung stones of the past.  Our right is in our hearts, and in our determination to enact God’s rule. No government can take that away. Of course, like Eve in the Bible, we can surrender it, abjuring our God-endowed liberty. Do we mean to do so?

Alan Keyes is a political activist, a prolific writer and a former diplomat.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.