History, Donald Trump, and the Second Amendment

“When all guns are outlawed, only outlaws will have guns.”

Those who take the Second Amendment seriously often recite that as a reason to keep gun ownership legal. But they're wrong. Besides outlaws, government, too, will have guns. And the government's guns are an equally or more important reason that gun ownership by “ordinary” citizens should remain (or again become) legal.

The thesis of this Second Amendment believer is simple: All weapons that are available to government should be equally available to the people. We repeat that, for emphasis: All weapons that are available to government should be equally available to the people.

“But wait,” you say. “Nuclear warheads, guided missiles, and the like are all available to government. Surely you're not saying “ordinary” people should have access to such destructive power." And you would be right. That is not what this Second Amendment believer is saying. What he is saying is that neither should government -- any government -- have such power. After all, and as Abraham Lincoln reminded us, the government that we seek is a government “of the people, by the people, and for the people”. And a government of, by, and for the people should not have the ability to annihilate the people.

People considering this philosophy will quickly conclude that this fantasy world is one that will never, and can never happen. They will be right, of course. That, however, begs the question. The question is not whether such a world can ever be achieved. Rather, the question is, is this philosophy one towards which we should work, mindful that we'll never reach that goal. (But the journey of a thousand miles begins with a single step.)

Some history is helpful here. For openers, understand that our founding fathers adopted the Second Amendment for the express purpose of empowering the citizenry against a potentially tyrannical federal government. As Justice Scalia on the United States Supreme Court noted in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 63 (2009) (emphasis added):

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103-106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Rights (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. This right has long been understood to be the predecessor to our Second Amendment.

Remember the growing pains of the labor movement. The labor movement began at a time when labor organizing was illegal. Heroic organizers proceeded anyway. Police and Pinkerton goons arrived to stop it. The goons used fists and billy clubs and guns. The police used the same.

Then there was the Bonus Army of World War One. World War One veterans, unable to obtain work during the Great Depression, camped out in Washington D.C. The purpose of their camping was to urge Congress to accelerate payment of bonuses that Congress had previously authorized. The First Amendment to the United States Constitution guaranteed citizens the right to peaceably assemble to petition the government (“...shall not be abridged.”)

Regardless, President Hoover ordered the veterans to disperse. The veterans remained. Hoover's attorney general ordered the police to remove them. The veterans returned and encamped. Police then shot at campers. Two campers died. The assault against the Bonus Army continued with cavalry, infantry, bayonets, and tear gas. The police and military assault against the Bonus Army was a significant factor in President Hoover's defeat in the 1932 election. The two campers, however, remained dead.

Gun Lawyers in New Jersey™ deplore mass shootings by crazies. They deplore mass shootings by extremists. They deplore that perpetrators of these mass shootings have access to guns. But if the cost of disarming these mass shooters is to disarm everyone--if the cost of disarming mass shooters is to leave guns in the hands of only outlaws and the government--then the sympathies of Gun Lawyers of New Jersey™ lie with those that would favor an armed citizenry.

Gun Lawyers in New Jersey™are not hunters. Nor are Gun Lawyers in New Jersey™ competitive target shooters. Nonetheless, Gun Lawyers in New Jersey™ believe that those that do enjoy those activities have the right to do so. The courts should act to enable persons in New Jersey, and elsewhere, to exercise those rights.