Charles C.W. Cooke has become one of my favorite writers, and a reason for that is a passion for the Bill of Rights that probably only an English expatriate could have:
In most of the world’s countries, firearms are regulated in much the same way as are, say, cars, radios, and lawnmowers: as everyday tools whose utility can be evaluated without prejudice. In the United States, by contrast, the government’s hands are tied tight. To those who are unfamiliar with the contours of Anglo-American history, this can be understandably confusing. “Why,” we often hear it asked, “would the architects of the Constitution put a public policy question into the national charter? Do we really have to stick with a regulatory scheme that originated before the invention of the light bulb?”
The answer to this question is a simple one: “Yes.” Why? Because, our contemporary rhetorical habits notwithstanding, the right to keep and bear arms is not so much a right in and of itself as an auxiliary mechanism that protects the real unalienable right underneath: that of self-defense. By placing a prohibition on strict gun control into the Constitution, the Founders did not accidentally insert a matter of quotidian rulemaking into a statement of foundational law; rather, they sought to secure a fundamental liberty whose explicit recognition was the price of the state’s construction. To understand this, I’d venture, is to understand immediately why the people of these United States remain so doggedly attached to their weapons. At bottom, the salient question during any gun-control debate is less “Do you think people should be allowed to have rifles?” and more “Do you think you should be permitted to take care of your own security?”
“Do you think you should be permitted to take care of your own security?” That’s the essence.
We might have a more secure nation if we rolled back the Second Amendment. We also certainly also have a more secure nation if we rolled back the Fourth Amendment. But in those cases, we would be less at liberty, because we’d really be accepting a regulatory attitude toward every Constitutional right, each of which are inalienable. I’d rather be one of David Foster Wallace’s “democratic martyrs” than be a resident of America reimagined like a college “safe space.”
Examples of the regulatory attitude toward the inalienable often take the form of those promoting “common sense” policies. In November, The White House started promoting legislation to ban someone whose name appears on a terror watch list or no fly list from being able to exercise Constitutional rights:
Charles C.W. Cooke pointed out: “It can’t be said enough how ugly it is to suggest that people who haven’t been charged, convicted, or even accused should lose their rights.” In other words, this “common sense” regulatory attitude is really in conflict with due process. Another Paris-attack related example appeared from opponents of encryption and Fourth Amendment protection from warrantless surveillance:
Kevin Williamson jokes that the Bill of Rights is really a list of things the Founders decided “you fools don’t get a vote on.” And that’s really the point: work to repeal any given amendment, but don’t pretend that any given guarantee of liberty can be regulated without making a citizen’s underlying rights alienable.