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Bret Stephens’ Fetishism for Gun Control

Right after the Las Vegas massacre, New York Times columnist Bret Stephens demanded that the Second Amendment be repealed. Mr. Stephens recently left the Wall Street Journal’s conservative editorial page, where he had been a hawkish voice on foreign affairs, and this burst of constitutional punditry has led to accusations that he is pandering to his new audience.

I doubt this is fair. Certain prominent “conservative intellectuals” have long displayed a notable lack of enthusiasm for the right to keep and bear arms. Nor is Mr. Stephens the first to advocate repeal of the Second Amendment. George Will and Charles Krauthammer, both of whom are Fox News regulars, did so many years ago. Their views have been subjected to a detailed critique, much of which can be applied to Mr. Stephens. Some of it is worth repeating now.

Mr. Stephens begins by saying that “I have never understood the conservative fetish for the Second Amendment.” His use of the word  “fetish” is presumably not meant as sexual innuendo. Rather, I suppose, he means that the conservative defense of the Second Amendment is irrational or superstitious. In fact, it is Mr. Stephens himself whose flawed logic exhibits an irrational belief in magic.

He first tries to show that America’s armed citizenry is more dangerous than a disarmed populace would be. His evidence is that there are more unintentional firearms deaths than there are justifiable homicides. Ergo, “more guns means less safety.” Is he not aware of the fact that merely displaying a gun when threatened with criminal violence is an effective and very common form of self-defense? And could he really be unaware of the deterrent effect on crime that results when potential victims are armed?

Two days after his Second Amendment column appeared, Mr. Stephens denounced those who advocate nuclear disarmament. As he rightly pointed out, such thinking after World War I disarmed only the nations that believed in disarmament: “In the name of peace, the good left themselves increasingly defenseless, their allies and dependents increasingly anxious, their rivals and enemies increasingly ambitious and, in time, violent.” This is just another way of saying what supporters of gun rights have been telling us for decades, “When guns are outlawed, only outlaws will have guns.” How could he see the point so clearly in one context, but not the other? And all in the space of two days.

To his credit, Mr. Stephens (like Mr. Krauthammer before him) recognizes that the usual gun-control nostrums would have very little effect. Although he coyly avoids specifying exactly what restrictions he thinks would be effective and desirable, he boldly asserts that it is imperative to fundamentally change our legal regime by repealing the Second Amendment.

What exactly would this accomplish, and how? Until 2008, when the Supreme Court suddenly discovered the Second Amendment, the lower federal courts had effectively read it out of the Constitution. Although it had long been treated as a dead letter by the judiciary, Congress and most state legislatures had enacted few restrictions on firearms. As he implicitly acknowledges with a reference to the power of Presidents to choose Justices, the Second Amendment could effectively be repealed today only through a Supreme Court decision that restored the status quo that existed until 2008. But why would that legal change cause legislatures to behave differently than they did before 2008? Only a believer in fetishes would put such faith in the magical powers of a judicial decision.

Mr. Stephens also has some bizarre ideas about why defenders of the Second Amendment believe that the right to arms is valuable. “From a personal liberty standpoint, the idea that an armed citizenry is the ultimate check on the ambitions and encroachments of government power is curious.” Far more curious is his failure to acknowledge that the personal liberty protected by the Second Amendment is primarily threatened by the criminals in our midst, rather than by the government.

The fundamental importance of the right to arms was not an American discovery. Like our own charter of individual liberties, the English Bill of Rights protected the right to keep and bear arms. William Blackstone—the leading authority on English law for Americans of the Founding generation—called it one of the indispensable auxiliary rights “which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” This right, he said, is rooted in “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Blackstone’s language focuses on the commonplace oppression that results from government’s failure to control violent criminals rather than on the more exceptional governmental oppression that might call for armed resistance.

Blackstone’s analysis can be traced back to John Locke, the true father of our Declaration of Independence. In his Second Treatise of Government, Locke emphasized the fundamental natural right to defend one’s life against criminal violence.

[A] thief, whom I cannot harm but by appeal to the [civil] law for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defense and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable.

Locke’s doctrine of natural rights provided the justification for the American Revolution, and arguably underlies the American regime itself. I imagine Mr. Stephens would acknowledge this, even while he denies that the Second Amendment “is fundamental to the structure of American liberty.” But what use is the abstract right to life and liberty without what Blackstone called an “indispensable auxiliary right” that makes it meaningful?

Cesare Beccaria, another political philosopher who greatly influenced the American Founders, made the general point more specific when he warned against disarmament laws that would “put an end to personal liberty.”

[L]aws that forbid the carrying of arms . . . disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty—so dear to men, so dear to the enlightened legislator—and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

Beccaria’s analysis is every bit as valid today as it was when he published it in 1764.

Mr. Stephens mocks the contribution that the right to arms makes to preserving “personal liberty” by offering criminal behavior as examples of “Second Amendment activism”: the Whiskey Rebellion of the 1790s, the New York draft riots of 1863, the coal miners’ rebellion of 1921, and the Brink’s robbery of 1981. Cute. Mr. Stephens disregards the threat to personal liberty posed by violent criminals because he does not understand, or refuses to acknowledge, what Locke, Beccaria, Blackstone, and all of the American Founders understood very well.

Mr. Stephens does not explain how repealing the Second Amendment would lead to the disarmament of criminals. But his misunderstanding of American principles runs deeper than this particular example of fetishism suggests. Law-abiding citizens who arm themselves are exhibiting the moral temper appropriate to a free people. They do not regard their lives and safety as a gift from the government. Nor do they think they should wait for the government to come along and save them when their lives, or the lives of other innocent people, are threatened. When that spirit is finally squashed, as Mr. Stephens apparently wants it to be, bureaucratic government will continue to expand, violent crime will continue to plague our most vulnerable citizens, and genuine self-government—both personal and political—will become ever more illusory.

This sadly thoughtless newspaper column concludes: “The true foundation of American exceptionalism should be our capacity for moral and constitutional renewal, not our instinct for self-destruction.” Evidently, Mr. Stephens sincerely believes that the true foundation for such a renewal lies in surrendering the liberty that allows us to take responsibility for defending ourselves and other innocent people from violent criminals. Fortunately, the many millions of Americans who do not share his misunderstanding of American exceptionalism may prove to be a source of genuine moral and constitutional renewal.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 09, 2017 at 09:14:36 am

This is excellent.

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Image of Mark Pulliam
Mark Pulliam
on October 09, 2017 at 12:09:47 pm

My take.
https://amgreatness.com/2017/10/04/second-amendment-duties/

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Image of Michael Kochin
Michael Kochin
on October 09, 2017 at 12:19:29 pm

Beware political thugs who would tamper with longstanding law , more so the Constitution. There's a type who poses for the sanctity of constitutions but holds darker thoughts for his real positions. Take heed.

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Image of john trainor
john trainor
on October 09, 2017 at 14:21:31 pm

Succinct and to the point - please forward to Stephens at the Times - perhaps it will slow his *growth* (as our Lefty friends term it) as he settles in at the Times.

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Image of gabe
gabe
on October 09, 2017 at 23:48:02 pm

There is one circumstance that even the must ardent gin control advocate must admit, if not of the fact, at least of the possibility: that the people who would profit or otherwise benefit from circumventing gun control regulations are smarter and better motivated than those doing the regulating. We see this phenomenon played out regularly with, for example, reference to the prevalence of illicit drug use, and historically with the prohibition of alcohol. The motivated creativity of someone who would make tens of thousands of dollars providing firearms manufactured in Mexico or Honduras to street gangs in a given American city is likely to trump the naive determination of earnest bureaucrats who do not understand the limited influence that government has on human nature. The semi-literate gang enforcer in Chino has much more in the way of practical smarts, at least in acquiring the minimum firepower necessary to an international criminal enterprise, than Dianne Feinstein or Bret Stephens. This disparity is likely to widen with advances in technology. Say what you will about bump sticks, the guy who came up with the idea was pretty sharp.

This is not an argument against gun control; it is an argument against the notion that restrictions will do much good. For good or ill, the technology of repeating firearms is about 150 years old; gun smithing is a community college degree, not an advanced course offering in the theoretical physics department at Harvard. An advanced civilization is much more reliant on the decency of its citizens for its survival than it is the force of its statutes. The Second Amendment applies only to the right to keep and bear arms, it is not necessary to their existence, nor to their availability in the criminal underground. Firearms themselves are not essential to the madness that perpetrates mass murder.

If Mr. Paddock, the perpetrator of the Las Vegas had not provided his own demise, one might reasonably wish to ask: was his primary motivation to shoot or to kill? Would he have foregone the anticipated satisfaction of killing if he had to forego the expected pleasure of shooting? We of course will never know, but even so, we can note, with just a cursory, off-the-top-of-the=head list, dates verified by Wikipedia, the following sample:

Date Number killed
May 18, 1927 45
December 12, 1986 98
December 7, 1981 43
April 19, 1995 168
March 24, 2015 150
March 20, 1995 12
March 11, 2004 192
June 11, 1964 10
December 19, 2016 12
March 1, 2014 31
February 27, 2002 59
May 17, 2010 44
June 3, 2017 8
July 7, 2005 56

The means used for these deaths included airplanes,, knives, sarin gas, explosives, motor vehicles, a flame thrower(!) and matches.

This list is not a sample of inadequate regulation, it is rather a specimen of psychopathic depravity against which the most competent of government is impotent.

The call for gun control is a symbolic protest against an uncomfortable fact: people that are crazy in their motives might be quite rational in their methods; they may in fact be quite ingenious in them. It is a form of inexcusable arrogance to assume that people who seem so illogical in their motives cannot outwit well-intentioned regulation, and the advice of "experts."

None of which is to say that there should be no limits on guns or gun ownership. Reasonable regulation should be expected to have reasonable results. Expecting to confine the darker and disordered impulses of the psychopath by assuming that decent people cannot be trusted with the means of emergent defense is not reasonable.

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z9z99
on October 10, 2017 at 09:32:04 am

Absotively BRILLIANT!!!!!

One of the best explanations of the *politico's* apparently uncontrollable urge to *do something*.

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Image of gabe
gabe
on October 11, 2017 at 17:13:31 pm

Madison wrote the Bill of Rights in typical legal prose as if they were a brief being filed in a case. Each line creates a thought and those thoughts are expand when combined with another line. Both expanded thoughts are then combined to expand them into a complete legal concept. Any legal brief uses the same technique. All the first ten amendments in the Bill of Rights are written this way, though the Second Amendment writing is verifiable the very best example of legal writing.It's clear, concise and very specific.

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Image of Hired gun
Hired gun
on October 11, 2017 at 17:49:17 pm

If the right to bear arms is auxiliary to the right to defend our persons and property, what are we to make of the common law rule that deadly force may not be employed to defend property?

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Image of Nathan
Nathan
on October 11, 2017 at 21:21:57 pm

The Constitution was changed omitting that black people were only three fifths of s person It was changed giving women a right to vote It was changed to prohibit the sales of alcohol then changed to say its legal WHY can't it be changed to say anyone that is a gun owner name is entered into a government database I have a commercial drivers license and have been undergoing background checks for years I have to prove I can operate an 80,000 lb truck safely Why shouldn't gun owners? Guns that use Fingerprint triggers would also help ! PANDORAS box was opened years ago & until its closed MANY Deaths will continue MOST people don't want the 2A repealed just updated from the musket days STOP LYING

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Image of Sam Abrams
Sam Abrams
on October 12, 2017 at 00:01:43 am

Regulations don't "prevent" rare incidents. They punish people after the fact and impose tremendous costs on the lawful taxpayers. Police most often don't "prevent crime" — they investigate, document it and apprehend (hopefully) those who've committed crimes. 

The hyper-emotional seem always ready to pass federal laws under the vain hope that laws "prevent" incidents. The actual preventative effect is so small in most cases as to be negligible. This is rarely ever more true than with Gun Laws. The crime deterrent (or accident prevention) impact on the population is miniscule, while the costs/impact on law-abiding taxpayers are distributed widely. 

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Image of Philip Green
Philip Green
on October 12, 2017 at 08:11:20 am

To change the Constitution, an amendment must be proposed, which requires not a majority but a two-thirds vote of both houses, and enacted, which requires ratification by three-fourths of state legislatures. So get cracking and your desired outcome will succeed.

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Image of Philip Green
Philip Green
on October 12, 2017 at 13:47:07 pm

"We do not have a gun problem, we have a mental health problem" -Rogan

"STOP LYING" to yourself

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Image of Ron
Ron
on October 12, 2017 at 16:55:29 pm

What on earth is a "fingerprint trigger"? It sounds like something you saw in a comic book somewhere.

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Image of Longhaired Redneck
Longhaired Redneck
on October 12, 2017 at 17:56:13 pm

Let's take care of our mental health problem by giving all Americans access to free/cheap mental healthcare! I am sure you would support that if you think there is such a big problem

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Image of Craig
Craig
on October 12, 2017 at 19:10:22 pm

This is the most true and factual statement ever! It is beyond foolish to expect someone hell bent on doing something extreme to abide by any law.

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Image of Woody
Woody
on October 15, 2017 at 18:05:52 pm

[…] Bret Stephens’ Fetishism for Gun Control Right after the Las Vegas massacre, New York Times columnist Bret Stephens demanded that the Second Amendment be repealed. Mr. Stephens recently left the Wall Street Journal’s conservative editorial page, where he had been a hawkish voice on foreign affairs, and this burst of constitutional punditry has led to accusations that he is pandering to his new audience. […]

read full comment
Image of News of the Week (October 15th, 2017) | The Political Hat
News of the Week (October 15th, 2017) | The Political Hat
on April 03, 2018 at 10:32:55 am

[…] These Founders were not articulating an original idea, either, but building on the foundations laid by such scholars as William Blackstone, Cesare Beccaria, and John […]

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Image of John Paul Stevens Is Wrong About the Second Amendment, History, and School Violence – USSA News | The Tea Party's Front Page
John Paul Stevens Is Wrong About the Second Amendment, History, and School Violence – USSA News | The Tea Party's Front Page

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.