On Guns and Government Authority

by Cord Hamrick - August 5, 2010

Reprinted with permission.

In his recent article "On Handguns and the Constitution," Ronald J. Rychlak touched on the subject of private gun ownership and regulation in the United States. The occasion was the Supreme Court ruling McDonald v. Chicago, which established that the Second Amendment, like all the other items in the Bill of Rights, recognizes and protects a particular freedom of private individuals.

Rychlak expressed approval for the decision; unsurprisingly, a few commenters disagreed. One reader put it this way:

Athough [sic] you will never convince me that the Second Amendment protects any right beyond the right to join one's state militia, I am tired of this argument. It's time (no, it's far past time) to simply repeal the Second Amendment. Let it join the infamous "three-fifths of a person" clause in the ash-can of history!

The comment is representative, and there are two unstated assumptions here that invite response. First, it is assumed that the government has just authority to prevent individuals (who have been convicted of no crime) from owning firearms or using them for self-defense; and second, that the Amendment gives the people a right that it shouldn't give, and therefore ought to be repealed.

Both assumptions betray a significant misunderstanding of where government derives its authority. Our civics classes have apparently failed to instruct; we must set the matter straight.

Where Does Government Get Its Authority?

Three relevant texts come to mind. The first is found in the Declaration of Independence of the United States:

We hold these truths to be self-evident, that all men… are endowed by their Creator with certain unalienable Rights… That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

The second passage comes from the Preamble to the Constitution itself, along with the opening words of Article I, Section 1:

We the People of the United States… do ordain and establish this Constitution for the United States of America.

All legislative Powers herein granted shall be vested in a Congress of the United States…

Finally, there are the Ninth and Tenth Amendments to the Constitution, which conclude the Bill of Rights:

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In light of the above texts, we can conclude that governments derive their just powers from the consent of the governed, and it is therefore the people who ordain and establish the Constitution, and thus, the government. Moreover, rights are automatically retained by the people, whether or not they're enumerated in the Constitution. It is the people who "grant" or delegate powers to the government.

In plain language, it boils down to this: In the United States, the government is the servant of the people; it is our employee. "We the People" establish government in order to better organize the use of force to secure our rights. Whatever just authority we have in ourselves as human beings, we may grant to our employee, the state. If we do so, the government may justly exercise it on our behalf. But if we choose not to delegate a particular power, then we still retain it to ourselves, and the government may not justly exercise it on our behalf.

One of the first powers we grant to government is the authority to use force in the defense of innocent persons. We can delegate this authority to government because we, as human beings, have it first – it is an intrinsic part of our human dignity and the freedom of moral action given to us by God (see the Catechism, 2263-2264). There are limitations, of course – force may only be used to deter a wrongful attack, and it must be "proportionate" – but this moral authority undeniably resides in individuals.

This is vital, because if we did not have that authority first, then the government itself could not possibly have it, either. After all, "We the People" are the government's sole source of authority. How could we delegate to them what we ourselves never had? Further, whatever authority we do delegate, we still possess as something intrinsic to our human dignity; the government possesses it only because we granted it to them.

Get that clear, and the issue of guns becomes easily resolved: If the people do not have the just authority to defend our rights by use of force, neither does the government. If the people do not have the just authority to use tools to enable that defense, neither does the government. They could not plausibly acquire from us any authority that we did not already possess. One cannot delegate authority unless one has that authority to begin with.

Returning to the two underlying assumptions of the commenter in favor of repealing the Second Amendment, we see that both are simply false. The government has no just authority to outlaw firearms ownership among individuals convicted of no crime. And while repealing the Second Amendment would rhetorically pave the way for the government to claim that authority (that is, it would make usurpation of that authority easier from a propagandist's standpoint), it would not in fact change the right of the law-abiding to keep and bear arms. That is the whole meaning of the Ninth Amendment. Rights come from intrinsic human dignity, which comes from God. Erasing them from the Bill of Rights cannot change that.