Ohio State history professor Saul Cornell is the author of the new book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), and of the law review article “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings,” 47 W. & M. L. Rev. 1123 (Feb. 2006). Cornell is a talented writer and researcher, but his treatment of some topics is extremely misleading. In a new draft article, "St. George Tucker’s Second Amendment: Deconstructing 'The True Palladium of Liberty'," Stephen P. Halbrook takes the reader step-by-step through Tucker's monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker's Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell's thesis.
St. George Tucker versus Saul Cornell on the Second Amendment:
Oh, snap!
Enough with Tucker. Let's start to celebrate the real hero of our constitutional right to firearms: John Bingham.
And it is most assuredly an Individual Right:
Journal of the Senate of the United States of America,
WEDNESDAY, SEPTEMBER 9, 1789.
“...On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'
“It passed in the negative.
“On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'
“It passed in the affirmative.
“On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'
“It passed in the affirmative....”
“...Resolved, That the Senate do concur in the resolve of the House of Representatives, on "Articles to be proposed to the legislatures of the states, as amendments to the constitution of the United States," with the amendments; two thirds of the Senators present concurring therein.
“Ordered, That the Secretary do carry a message to the House of Representatives accordingly.
And it was NEVER intended to be touched upon by any government, be it local, state or federal:
"I. Natural Rights of the Colonists as Men;
"Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature...."
"In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the
grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation." - Samuel Adams and Benjamin Franklin, 'The Rights of the Colonists', (November 20, 1772).
"It is a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution, which is considered as essential to the existence of the Government by those who promoted its adoption...."
"In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."
-James Madison, June 8, 1789 House of Representatives, Amendments to the Constitution 8 June, 21 July, 13, 18—19 Aug. 1789 Annals 1:424—50, 661—65, 707—17, 757—59, 766.
"I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.
"The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not
confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation — of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."
- James Wilson, from a series of lectures given between 1790 and 1792, 'Wilson, Of the Natural Rights of Individuals', in 2 The Works of James Wilson 335 (J.D. Andrews ed. 1896).
“The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things. While these continue to be the same, it must continue to be the same also. This immutability of nature's laws has nothing in it repugnant to the supreme power of an all-perfect Being. Since he himself is the author of our constitution; he cannot but command or forbid such things as are necessarily agreeable or disagreeable to this very constitution. He is under the glorious necessity of not contradicting himself. This necessity, far from limiting or diminishing his perfections, adds to their external character, and points out their excellency.
“The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.
“This law, or right reason, as Cicero calls it, is thus beautifully described by that eloquent philosopher. "It is, indeed," says he, "a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind."
- James Wilson, [The Works of the Honourable James Wilson, L.L.D.; Chap. III Of the Law of Nature]. Mr. Wilson signed the Declaration of Independence and the U.S. Constitution. In addition he was a delegate to the Constitutional Convention and a U.S. Supreme Court Justice.
"The right of self-defense in these cases is founded in the law of nature, and is not, and cannot be superceded by the law of society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature."
- James Kent, 1763–1847, [Commentaries on American Law - Vol. II, Lect. XXIV, Of the Absolute Rights of Persons, (1826-30)]. Chief Judge N.Y. Supreme Court, First Professor of Law at Columbia College.
And the judges ruling by 'stare decisis' is utter nonsense and repugnant as well:
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the People is SUPERIOR to both; and that where the will of the legislature, declared in its statutes, stands in OPPOSITION to that of The People, DECLARED IN THE CONSTITUTION, the judges ought to be governed by the LATTER rather than the former. They ought to regulate their decisions by the FUNDAMENTAL LAWS, rather than by those which are NOT fundamental.
"But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former...."
"...It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A CONSTITUTION is, in FACT, and MUST be regarded by the judges, as a FUNDAMENTAL law." - Alexander Hamilton, Federalist #78
All 'gun control' is Constitutionally Repugnant, and an illegal usurpation of authority.
Hear! Hear!
However, there are two different notions of self-defense at issue here. There is the question of the defense of the individual against the state and that of the individual against other citizens. I have not yet been convinced that the original intent of the second ammendment was meant to guarantee the later. This has important practical consequences since if the 2nd ammendment merely protects the right of individuals to defend themselves against a tyranical state handgun regulations should be perfectly fine, though rifle and assault rifle regulations are problematic.
The increase in gun control over the centuries seems to me to be an unavoidable consequence of the increasing power of the government over that time. I just don't see the point in whining about it or excitedly waving learned treatises about - nobody in a position to make these changes cares about these arguments. The constitution is not a document that people pay attention any more on important matters anyway.
Where to begin. First of all your prior quotes (having been handpicked may not give a fair picture) don't support your conclusion that all gun control is repugnant, by which I take it you mean unconstitutional. At best they support the notion that any gun control that precludes the ability of the people to defend themselves and their property is unconstitutional. Things like five day waiting periods or restrictions on the number of guns that can be purchased certainly ought to be fine. Also it is unclear whether restrictions on the kind of guns (outlawing saturday night specials) are problematic either.
Secondly it is unclear to me from your quotes whether or not there is a right to defend yourself from your neighbor or merely to defend yourself from a tyrannial government. More context is necessery. The quotes you give about divine law and transcendent nature actually hurt your case. All I need to do is argue that in fact divine/transcendent law favors gun control and it would seem I show the constitution actually allows it. Besides, many of these quotes show only the beliefs of particular individuals and may not represent overall opinion.
Thirdly, it seems clear that the framers distingushed between the right to keep individual arms and the right to own cannons or naval ships. Thus there is the comlex task of deciding how to extend that line to modern weaponry. For instance a nuclear weapon clearly is not covered by the 2nd ammendment but is an assault rifle?
Finally your argument about stare decisis is just broken as the framers were well aware of the role of precedent in English common law and implitly incorporated that into the constitution. In fact without the concept of stare decisis no common law system could work as the laws would change ever time you had a new appointment to the bench and this was certainly recognized by the framers.
--
DJ,
Let's grant that the writers of the 14th ammendment thought the 2nd ammendment was individual this still doesn't solve the problem even for the states. The writers of the 14th ammendment also thought they were incorporating (to the extend they thought about incorporation at all) the correct understanding of the 2nd ammendment.
As a simple example suppose I tell you, "Do whatever John told you to do," thinking John told you to clean your room. Now if John really told you to mow the lawn my misunderstanding is irrelevant, you can only comply with my command by mowing the lawn not by cleaning your room.
In short so long as the writers of the 14th ammendments didn't specifically understand the ammendment to be imposing their understanding it really is the writers/acceptors of the 2nd ammendment whose understanding matters.
First Michael Bellelies, now Saul Cornell. Desparate men do not produce quality scholarship.
Read Amar.
Given the absence way back when of a police force, and the machinery of criminal justice that we now take for granted - how do you THINK they intended for people to preserve themselves against the depradations of their "neighbor"? Why, given the precedent that the police/state are under no positive obligation to assure your safety, would you suppose that there is any question as to a right to [armed] self defense?
What if those are the five days that I need defending?
> or restrictions on the number of guns that can be purchased certainly ought to be fine.
Absolutely - there's no constitutional protection for lots of presses.
> (outlawing saturday night specials)
And poor people, especially those poor people, surely don't need guns.
SNS is a term invented for one of the first gun control campaigns in the US. Some things never change - it's the same appeal every time. The only thing that changes is the dress on the white woman.
Why, given the precedent that the police/state are under no positive obligation to assure your safety, would you suppose that there is any question as to a right to [armed] self defense?
I know this has taken on the aura of urban legend, even among the legal community. But surely there are limits to this. I mean if a police department knows of a torture and rape ring that repeatedly and continuously operates in their jurisdiction surely they have some obligation to act and make stopping the ring a somewhat higher priority than writing traffic tickets. That is unless they are protecting the ring or afraid of it - but even then any honest, responsible personnel they would seem to have an obligation to report it to other agencies.
Returning to the FACTUAL basis then, the fourteenth is irrelevant so far as for use in arguing the Second. Since the Second is TRUE Fundamental Law. All that one has to examine is the preamble to the original Amendment(s) itself:
Amendment II -
Declaratory clause;
A well regulated militia, being necessary to the security of a free state, (Common Defense)
Restrictive clause;
the right of the people to keep and bear arms, shall not be infringed. (Individual Defense)
Which falls into line with the final argument in the Senate as shown here.
The argument is built here; The Right
The whole premise of our government is based upon freedom of the individual, and protection of the whole. And founded upon "the Laws of Nature and of Natures God". Which Laws are immutable, they cannot possibly be changed without causing havoc.
The courts have been increasingly altering our fundamental basis by technical constuctions. Going so far as to initiate the use of foreign law in making their decisions. As well as allowing the legislature(s) to pass laws that were clearly outside the scope of their delegated authority. Hence, that which was predicted by Patrick Henry has now come into actuality:
Consider the preamble to the Constitution itself:
As well as the First Draft(s) to the Declaration:
And, speaking of the Civil War period:
And;
And quite a bit more proof(s) can be found here:
After The Fact
In addition to all of this, the governmen was never delegated ANY authority over the right to begin with. As shown here:
It appears that Mr. Hamilton was indeed correct in his assessment, yes?
And, finally, Tenche Coxe slams the point home here:
Can a birthright be legally divested by anyone other than the one whom bestowed it?
Mr. Coxe was a prominent Philadelphian and political economist who was named assistant secretary of the treasury in 1790, commissioner of revenue in 1792, and purveyor of public supplies in 1803.
And there are ample Constitutionally CORRECT judgments which provide further proof:
Does the law of reason itself follow, that the government be delegated ANY authority whatsoever over the means to put it down should it become tyrannical? NO, it doesn't, nor by ANY stretch of the imagination could it ever. Logic, when clearly followed would announce such a conclusion, (of government control), as utterly vacant.
As somewhat alluded to earlier by another commentator, Blackstone, (the original), worked fine for English law. But has no place here in America. One of the main causes for the Revolution, was the use of arbitrary rule to disarm the populace. We were fleeing oppression, remember?
The ONLY delegated authority that government has is over the Standing Army and Organized Militia. And, can call the unorganized militia into service of the state or federal when needed.
The ONLY truly correct Constitutionally legal time that an American citizen can be disarmed, is if they are imprisoned PERIOD And then government must provide for their protection.
When released, they are again in the “state of nature” and are at liberty. Thus, they are entitled to defend themselves, (Unless government wants to provide an armed guard for each and every citizen).
Binding a free citizen perpetually, or use of prior restraint(s), is clearly outside the purposes for which our governments were formed. It defies the declaration of purpose for which our Constitution was ordained and established. Is, by logic and reason, the servant above their master(s)? Hardly.
We are only as free as we allow even our enemy to be.
But consider, if you will, did I quote anyone else but the founders of our country? (Other than the legal decisions). Did I stray, in the slightest degree, from the obvious intent of what they had written? Are there any falsehoods in the contention, at all? So then, the founders own words are now just 'theory'? That it should not be given even the slightest regard? (Just as our Constitution). That the perversion should just go on, unchecked, and without question or complaint?
Can it honestly be held, that what we have today, is what was intended by those who wrote the Constitution? I strongly contend that it is not.
Are we not, almost precisely, in the same type set of circumstances that caused the Revolution?
Tell me, please, why would a judge rule thusly?:
And this, at a time not to distant from when the original intentions were still somewhat fresh in the minds of the people.
Are all the rulers of the twentieth century, (the Age of Infringement). And now, the twenty-first century, (the Age of continued, and speeded-up, Infringements), so much more wise and knowledgeable than the founders?
When does it stop? When we are all 'safe'; the world stripped bare of ALL danger, and we are commanded immobile?
Logically I agree there are limits, but the case law doesn't [yet] define any. Probably because the police do work to assure the general safety of the community - which shields them from your hypothetical. However, as an individual you aren't able to demand (and get) protection. Without a right to armed self-defense, where then has the state left you?
The potential for extreme applications doesn't refute a right, but simply suggests it is time to develop a real jurisprudence of it.
"The Right of the People to Keep and Bear Arms", has an explicit denial of any delegated or implied authority. As shown by use of the words; "Shall NOT be Infringed". Which is clearly an unmistakable restriction
The following is how the word 'Infringed' is defined by Webster;
1 : to encroach upon in a way that violates law or the rights of another
This specific right has been encroached upon, either because of implied relevance to the 'militia'. Or, by implication of need for the "common defence" or "general welfare". The specific subject of "common defence", as it pertained to the Right of the People, was debated and negatived. Yet, it can and has been conclusively proven that Self-Preservation is the First Law of Nature. And, that it is applicable to every person that draws breath.
It is a truly remarkable thing that a Right has been transgressed by use of implication. Especially, when one considers Mr. Elliot's notes on the subject:
"That the enumeration of certain rights shall not operate constructively against the retained rights". (A.K.A. - Ninth Amendment).
And, as you can see, Mr. Elliot clearly notes that it is the Right of the citizen to Keep and Bear Arms.
From whence then, does this assumption of implied power arise? I, for one, would be extremely grateful if someone will show me from where it is legally derived. For I've searched and searched, and I can't seem to locate it ANYWHERE.
A firearm is a tool employed for Self-Defense/Preservation. Which is the clearly stipulated qualification for the tool being utilized. And there are direct quotations by the founders, that we are to be like armed as the military. And this, specifically for the people be able to match or overcome a military force being employed in the hands of Usurpers.
A tactical nuclear device is designed for mass destruction of people and property. And this, for retaliation or pre-emptive strike.
The two weapons have zero relation to one another for a valid comparison.
Probably because the police do work to assure the general safety of the community - which shields them from your hypothetical.
Working to assure the general safety of the community in ineffectual and disingenuous ways does not shield them from the hypothetical. It's clearly a breach of duty at bare minimum. Like a doctor working on a hangnail while the patient is bleeding to death. No one considers a "community" where rape and torture are rapant but there is little speeding "safe". Unless its happening to an underclass whose abuse they approve of - in which case the "community" itself is criminal.
And if we have a government that would use such a device on We The People, then it's time to "to alter or to abolish it, and to institute new Government".
The hypothetical scenario which you provide, would most definitely run into the zone of "insure domestic Tranquility, provide for the common defence, promote the general Welfare." For we aren't talking "Self-Defense/Preservation", we would be talking about wholesale annihilation.
Been there, done that. Ordnance are not arms - the authors of the 2nd knew the difference and so does everyone not so desperate as to resort to absurdity. By the way, would you care to cite the federal law and it's constitutional basis, that actually prohibits the possession of a nuclear device? Berkeley and Boulder nuke-free declarations don't count.
That is a burden of proof that you would have to meet, not me.
No physician is compelled to do anything by your assertion of some supposed right. Likewise, the police are not obligated to protect you individually. Their duty is to the community at large. You can argue at the edges as much as you like, but you aren't changing the central issue.
Really? I don't see any such distinctions in the amendment.
Are you saying there is no prohibition against possessing a nuclear weapon?
try looking up Title 18, Part 1,Chapter 39, Sections 831 and 832
The word choice - simple as that. Ordnance, arms, regulated - all had unambiguous usage to the people that were writing at the time. Now, you can continue to pursue this line of "reasoning" to even further absurdity or admit it's really just a lark.
Section 831 does not outright prohibit the possession of nuclear material. It does provide for punishment for misuse or fraudulent acquisition of nuclear material. Sec. 832 was repealed, so I don't know what you are claiming there.
That is a burden of proof that you would have to meet, not me.
The hypothetical assumes a Torture and Rape ring is operating and that the police are aware of it and not doing anything about it.
No physician is compelled to do anything by your assertion of some supposed right. Likewise, the police are not obligated to protect you individually. Their duty is to the community at large. You can argue at the edges as much as you like, but you aren't changing the central issue.
Not if the person is their patient.
For what it shows, is just how technical constructions have destroyed a God-given, Inherent and Natural Right. One that was supposed to receive the protection of government, rather than the Infringement upon.
Mr. Tucker, in his work(s), painted a similar scenario. Only it was of how the British government had eroded the right.
Funny, I thought that we seperated from the crown, to flee oppression? Obviously hasn't worked out that well, has it? But, Arbitrarily rule and technical misconstructions never really go away, do they? Nor do they require the wearing of a crown....
Right, and we are talking about being able to turn that into an actionable claim by an individual, not a general indictment of police corruption/incompetence. Therefore, YOU have to prove both the existence of the ring and the police indifference to it AND that your client suffered damages due not just to the criminal conduct itself, but also to the police lack of response. Since the case law is pretty much against you, I think you'd have some pretty tough sledding - as much on establishing the facts as on the legal theory.
I would like to see where you get this. It just isn't there. The Constitution ASUMES Privately owned WARSHIPS. That is what Letters of Marque are for. Private Warships not Public Warships. And Private ownership of cannon was common, especially on ships. So you are wrong.
On Nukes. The 2ed is about arms usfull in a revolt against a bad government. NBC agents are NOT usefull in a revolt. This is a red hearing brought out to make the 2ed seem stupid or those argueeing for it look stupid.
There are tanks, artilery, war planes, etc that are privately owned today. They should not require a transfer tax or to be registered as Class 3 weapons. But they are out there. NFA is unconstitutional on it's face. You can't tax a right. Just as you can't have a poll tax you can't have a tax to own arms. Background checks are Great. Taxes to own Bad. NBC worthless. Stingers good if you can afford them. Deeper background check then for a pistol, Great no problem.
Now, I wonder if that farmer had a Concealed Carry Permit?
Am confused as to how one 'permits' an inalienable, pre-existent natural right. This power must have mysteriously appeared over the last few decades, yes?
How does one come up with the power to issue the permit, when there is no power delegated in which to do so? Is not that called usurpation of authority? An Infringement would perhaps be a more apropos term, yes?
And, how is it that an unconstitutional usurpation of authority can come to be accepted as 'settled law'? Is it still not, on its face, unconstitutional? For is not true 'settled law', the fundamental law?
Then the only weapons that are protected are those useful in a revolt? Who defines that? The SCotUS ruled that a saw-off shotgun isn't a viable "militia" weapon, is that the standard? In any case, that means that we should still have unfettered access to such things as cannon and missiles (I'd like a tank, myself); if you are trying to fight a revolt against a military that has them, you won't get far with just handguns and longarms.
And why wouldn't NBC weapons be useful? Chem and radiologic (so-called "dirty" bombs) are the ultimate in area-denial weapons, better than landmines. Besides, the government has them, so an effective revolt must be prepared to match them.
I'm not trying to make all supporters of the 2nd look stupid; I am a firm believer in the RTKBA myself. But I also believe that reasonable regulation is not an infringment.
Right, and we are talking about being able to turn that into an actionable claim by an individual, not a general indictment of police corruption/incompetence. Therefore, YOU have to prove both the existence of the ring and the police indifference to it AND that your client suffered damages due not just to the criminal conduct itself, but also to the police lack of response. Since the case law is pretty much against you, I think you'd have some pretty tough sledding - as much on establishing the facts as on the legal theory.
Not exactly - you stated that the police "generally" taking action to protect the citizens shielded them from liability - it doesn't. In the hypothetical we're discussing what shields them from liability is their own dereliction, incompetence, and/or corruption. In order for someone to succeed in a claim against them he would have to do their job to prove that they didn't. (Without the resources and powers.) If that isn't the Catch-22 of Catch-22's I don't know what is. And certainly a general statement on police competence/corruption.
It's pretty sickening - hundreds of people apply for each opening in those jobs. If you're going to take the job, do the job.
Congress has delegated authority over the militia. That is a fact, that cannot be contested. And, if I'm not mistaken. The case you referenced was argued on the basis of the defendant(s) being in the militia.
The right of the people to Keep and Bear Arms is a pre-existent Right of Nature. It is a stand alone inherent, and natural right that has NOTHING to do with the militia. Other than joining with others in your community if the situation demanded it. The militia was declared as necessary to the security of a free state in the "Declaratory" clause. The right of the people was removed from debate in the "Restrictive" clause. It was specifically kept from being intruded upon by ANY acts of government/law.
Because Congress illegally, with the concurrence of S.C.O.T.U.S., stuck their nose in. And this, in a place where it was specifically denied any intrusion upon, or any authority over. Does that make their decisions right and legally correct? NO. It makes it an Usurpation of authority and an exercise of unconstitutional power. How can "Shall NOT be Infringed" possibly be mistaken in its meaning? It cannot. The ONLY legal authority they have, is punishment for misuse of the God-given, Inherent and Natural right.
However, the government is specifically charged with the duty of:
"...insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..."
How can a right be secured, if it is allowed to be infringed? If a person is free from confinement - they are free, they have paid their debt for their crime. They are once again in 'the state of nature' and entitled to defend themselves. Anything different than this can very well be construed as cruel and unusual punishment.
The weapons that are capable of causing mass destruction cannot, and must not be left up to the use of individual discretion. That would defy the whole purpose of instituting a government to begin with - security of the whole society. Which government, is supposed to have a series of checks and balances to ensure against, as far as is possible, incorrect and arbitrary decisions in the use of power.
The decision for use of a weapon of mas destruction would be an arbitrary one, in the case of an individual. And brings in others that may not concur with its use. Thusly causing an adverse effect on the noncombatants liberty. As much Individual liberty as is possible, within the bounds of respect for the liberty of others, is the guiding rule. Or, it is supposed to be.
The right of self-defense/preservation is the First Law of Nature. The whole American governmental system is based upon "the transcendent laws of nature and of natures God". And is supposed to be guaranteed to each and every free American citizen without distinction. It is the basis on which our Constitution was formed - the very foundation. It cannot be discarded, or whittled down by technical misconstructions. For it is THE Fundamental law on which all others stand. It is a pillar, as well as self-defense/preservation being the guardian of ALL of the other rights. And, we are to be like armed as the military force, in the hands of usurpers, that may be employed against us. However, we do not have the right of taking those, whom are not involved by their own choice, with us. Which the use of a weapon of mass destruction would most certainly entail.
And, as indicated in an earlier post. If we have a government that has, or is using weapons of mass destruction on the people, than that government needs altered or abolished.
That isn't exactly what was held, and the specifics of that case tend to fit Bork's inkblot hypothesis amazingly well.
Eh, weren't we talking a hypothetical?