Secretary of State Clinton and the Second Amendment:

That's the topic of my new article for America's 1st Freedom, a NRA member magazine. Of course the Second Amendment is not the most important issue by which Secretary of State Clinton will be judged, but as Secretary of State, Mrs. Clinton will, like her predecessors, have the ability to affect the domestic exercise of constitutional rights by American citizens. A 12 minute podcast on the topic is also available.

Part of a series which includes Attorney General Holder (article, podcast), and Chief of Staff Emmanuel (article), with more installments in the works.

martinned (mail) (www):
Hmmm, call me crazy, but the SoS is hardly the first cabinet official I'd think of in connection to the second amendment. Scare monger much?

And, BTW, "America's 1st Freedom"? Really?
2.23.2009 9:08pm
Siskiyou (mail):
Well, what is your nominee for the "first freedom" here--or in the Netherlands? Freedom of speech?
2.23.2009 9:17pm
Madison (mail):
If only someone else had thought to put these rights in some sort of order....
2.23.2009 9:18pm
martinned (mail) (www):
@Siskiyou: If you want a serious answer, any attempt to rank rights a priori is silly at best, or dangerous at worst. 2nd amendment rights are neither essential for the protection of other freedoms nor central in free people's lives, so I don't see any sense in which they would be "America's 1st".

[DK: "First" in the sense that, particularly in a nation with won freedom by popular revolution, the RKBA is the right which made the others possible. And "First" in the sense of most important, in the sense that the right is intended to be the last-resort protector (or deterrent) against tyranny, if all the other checks and balances and have failed.]
2.23.2009 9:23pm
Actually, I would say that the right to self defense is both essential for the protection of other freedoms and central in free people's lives.
2.23.2009 9:30pm
Siskiyou (mail):
I tend to agree that rights are unrankable (although some are surely less important than others). But if so, the purpose of the remark '"America's 1st Freedom"? Really?"' becomes rather difficult to discern.
2.23.2009 9:35pm
martinned (mail) (www):
Not to rehash old discussions, but the countervailing power argument for 2A made sense when it was written, but is utterly unpersuasive today. No group of citizens with infantry weapons can overthrow the government, and when it comes to stopping the government from overthrowing them, explosives matter more than guns. (As demonstrated in many unpleasant places in the world on a daily basis.)

As for the right of self defence against other citizens, that is hardly central in free people's lives in that it is not something one would have to do or contemplate very often (I'd hope), nor is it part of the web of rights and duties that make a democratic (=free) state possible, like 1A rights and rights that protect against a more direct deprivation of liberty.
2.23.2009 9:43pm
CDU (mail) (www):
DK: "First" in the sense that, particularly in a nation with won freedom by popular revolution, the RKBA is the right which made the others possible.

Not to mention that the first battle of that revolution was precipitated by an attempt at gun confiscation. The right to arms was literally the first freedom secured by the revolutionaries.

[DK: Good point. Also, the personal right of also defense is the foundation of all other rights, and the foundation of international law itself, according to Grotius et al.]
2.23.2009 9:52pm
David E. Young (mail) (www):

If only someone else had thought to put these rights in some sort of order....

For a different perspective:
In the Virginia Ratifying Convention, Patrick Henry introduced a twenty article Bill of Rights that James Madison promised to support in order to obtain ratification by that state. When Madison complained about the forty amendments being proposed by the Antifederalists (the BR plus 20 other amendments not taken from state bills of rights) Henry stated that the proposed Bill of Rights was only one amendment, not twenty. Henry's proposed Bill of Rights, written by George Mason, contained all of the protections later found in the first eight amendments of the U.S. Bill of Rights.
2.23.2009 10:02pm
Eric (The One and True Courageous One) Holder (mail):

Utterly unpersuasive, doubly utterly, maybe even triply or quadruply utterly.

And how's that freedom of speech going for you, including the self-censorship issue? Last I noticed, not so long ago, it was a video of police types running from some Islamic/Islamicist hecklers.
2.23.2009 10:30pm
Siskiyou (mail):
I don't mean to pick on martinned, and I don't know if he is a citizen or resident of the Netherlands, but since his postings often indicate a Dutch connection, his second comment strikes an off note. I have an old friend who, as a boy during WWII, was in the Dutch underground. I have heard from another person whose word I trust implicitly that my friend's tasks in the underground included assassinating German soldiers (officers, I think) with a handgun. I am sorry that I can't cite my sources. Now, I did not see these events, but if what I have been told is true, there were some people at least, who thought, and were willing to risk their lives to attempt to prove, that a handgun could be a useful weapon in "overthrow[ing] the government". Do not underestimate what an armed, desperate population can achieve over time, and remember the debts that we owe to others.
2.23.2009 10:34pm
Vladimir (mail):
David, how do I say this? How about: just stop! Let's face it, gun rights, in the scheme of things, just aren't that important. Can you focus on things that matter? Secretary of State Clinton has world crises --important things -- to deal with. If she kills gun rights in the process, it's collateral damage. Stop viewing the world through the lens of guns.
2.23.2009 10:54pm
Kevin P. (mail):
Putin? Is that you?
2.23.2009 10:59pm
Kevin P. (mail):

Well, what is your nominee for the "first freedom" here--or in the Netherlands? Freedom of speech?

Touche. Perhaps if this gentleman had been armed, he just might still be alive.
2.23.2009 11:02pm
Fûz (mail) (www):
"the SoS is hardly the first cabinet official I'd think of in connection to the second amendment." Not the first, necessarily, but shouldn't be the last either.

Not to steal from DK's article, but the Secretary of State is in a very useful position to promote or inhibit the free exercise of RKBA in a global economy.
2.23.2009 11:03pm
More importantly . . .:

nor is it part of the web of rights and duties that make a democratic (=free) state possible, like 1A rights and rights that protect against a more direct deprivation of liberty.

Really? I consider the civil right that articulates my natural right to an effective means of self defense against unlawful force pretty key to protecting myself from being killed--the most direct deprivation of liberty possible.
2.23.2009 11:05pm
Fûz (mail) (www):
at 1103pm: "promote or inhibit the free exercise of RKBA in a global economy."

Sorry, I meant that to read, "exercise of RKBA in the US, considering that the US is leader and participant in a global economy."
2.23.2009 11:06pm
Siskiyou (mail):
Thanks, Kevin. Actually, I have no candidate for "first" although the First and Second Amendment rights are certainly in the first rank. It just seemed to me that someone connected with the Netherlands should think long and hard before sniping about either of those.
2.23.2009 11:12pm
Barry (The Cliff Diving and Smiling Rhetorician) Obama (mail):

As the argument has often been put, in this forum and many another forum as well, 1) first things first and 2) a period of conflict and crisis is a time to reinforce basic principles, not a time to succomb.

And, the 2A does in fact reflect America's 1st freedom. Not in a simplistic, ordinal manner, but it does. Yes - Mr. Smiling Rhetorician's assurances notwithstanding - it does.
2.23.2009 11:20pm
Mr. Kopel,

I read your article. It informed me about several potential issues in the arena of gun rights, and as a supporter of RKBA, my thanks.

But in terms of style and owing to several rather large questions which you fail to answer, I have to say it's poor work overall. I'm not sure if it's you even wrote this blurb, but the bold text foretells a coming "nightmare" and -- even better -- mentions Clinton's "minions." Did the 1st Freedom editors pull a switcheroo on you, or did you actually decide to call people "minions"? Because, Mr. Kopel, for an article that ends with a plea for continued financial support of the NRA, such obvious rhetorical attempts to construct theatrical villains suggests that perhaps your piece is partly about ginning up some dramatis personae and then encouraging the troops to retake Scotland from MacBeth.

Another problem I have, personally, with your piece's rhetoric is that it begins by saying that Bill and Hillary Clinton have done more to advance the anti-gun movement than anyone else in two centuries of American history. Perhaps I'm grossly misinformed -- I mean that genuinely -- but isn't that like saying Bob Dylan has written the best rock songs in two centuries of American history? I'll assume what you say about Bill and Hillary Clinton, making them people who've outpaced centuries of others strikes me as more theatrics intended to please the 1st Freedom audience, which haaaaaates the Clintons and loves to have them as villians.

[DK: Unfortunately, infringements on the Second Amendment, unlike rock music, didn't start in the 1950s. ("Rock & roll" in the 1950s; "rock" in the 1960s, if you want to be precise.) The Freedmen's Bureau Act and the 14th Amendment, for example, were efforts to deal with infringements of the RKBA in the 1860s. Stephen Halbrook's excellent work supplies the full story. And, as Randy B's hero Lysander Spooner argued, the whole ante-bellum system of slavery was, among other things, a violation of the Second Amendment.]

In short, I always have the sneaking suspicion that whenever an old villian from the last cycle in the RKBA drama reappears, rather than being upset, the NRA loves it -- the new boss may be the same as the old boss, but it's still easier to scare up anger at the old boss. I know I've focused such much on how you wrote, rather than what you wrote, Mr. Kopel, but I hope you understand my contention that how these pieces are written often determines how they really move the reader, sometimes more than the facts presented.

Finally, a (long overdue, I admit) critique of your piece on substance rather than style. You talk about the ICCR, ratified in '92 and its apparently bizarre view of the RKBA. But none of the specific overrreaches you worry about came to pass after '92, crucially, when the Clinton's were already in power, along with Reno and the rest of the Ruby Ridge Bunch. So I confess to being lost. If the Clintons already had a treaty ratified which they could use to suppress our Constitutional rights and failed to do so -- failed, as far as your piece demonstrates, to use the treaty lock up rape victims for shooting their assailants --why assume they'd do so now? I know the Clintons had a dim view of gun rights, but the evidence seems to be against Hillary using treaties to restrict our rights, if only because if he did so after '92, your piece doesn't say so. That's a real problem I have with your piece.

[DK: Because the 1990s, all these theories were not even embryonic. The UN/NGO folks were just in the very earliest stages of switching their targets from land mines to American gun owners. Your question is like asking why nobody used the 14th Amendment to mandate forced bussing for racial integration of the public schools in the 1920s.]

Not to mention that you add an essentially unrelated and very shallowly considered remark that Obama will be able to create a court hostile to the 2nd amendment. You don't really mention his views on the 2nd amendment though, if he's against it as an individual right -- you just want your audience to assume so. You also don't mention that Heller would likely be relevant and receive the benefit of stare decisis . It gives the impression that you want to create a climate of extreme possibilities, and summon up a lot of powerful fears without weighing the likelyhood of what will come to pass.

[DK: Prior articles in AFF, as well as on the VC, have extensively discussed the issue of whether Obama's nominal support for the individual right, or a post-Heller Court with Obama appointees, is likely to provide much if any protection for Second Amendment rights. It's beyond the scope of a printed magazine article, which is of limited size, to recapitulate the details of this analysis.]

And then you congratulate the readers, in so many words, for continuing to give the NRA money to stem the tide of these sundry horrors. Mr. Kopel, with all due respect, if Hillary Clinton does not use the Mexico situation to infringe upon our rights, and if no one is jailed, pursuant to treaty powers, for shooting some rapist in legitimate self-defense, will you apologize to Hillary Clinton for foretelling a RKBA "nightmare" and talking about her "minions" like she sprang whole out of JOohn Milton's mind?

[DK: If Secretary of State Clinton does nothing in the next 4-8 years to promote the infringement of Second Amendment rights, I will certainly praise her actions in that regard, and will affirm that my concerns regarding her were incorrect.]
2.24.2009 12:41am
Let me correct one thing quickly: the bold text doesn't mention Clinton's minions; that's in the actual piece. Sorry about that and various typos.
2.24.2009 12:46am
Melancton Smith:
I think it might be lost on some folks that while 'America's First Freedom' focuses on 2nd Amendment rights, it relies on the First Amendment rights to do so...though I have read articles in it defending 1A.

1A is pretty well fleshed out and mostly protected. The same cannot be said for 2A.
2.24.2009 1:03am
greyarcher315 (mail):
What bothers me is all the people saying the right to bear arms doesn't really matter. But it is one of those things that you will only miss if it is ever reall needed, and then it is too late. If we don't protect our rights now, then we will be sorry later.
Plan for the worst and hope for the best.
2.24.2009 6:47am
Martinned: A government "deriving its just powers from the consent of the governed" can't deprive the governed of the power to withdraw that consent. To do so makes a mockery of 'popular sovereignty'.

In fact, attempts by the government to disarm 'We the People' are acts of rebellion by the government against its sovereign.
2.24.2009 7:59am
The article's headline declares that a "nightmare" (instead of Mrs. Clinton, curiously) has been named Secretary of State. The concluding paragraph is an excited fundraising and recruiting pitch. The article is published in a magazine whose title consists of a somewhat overblown view of gun rights.

Is it surprising that the remainder of the article is primarily political lather?
2.24.2009 8:49am
I find this fear mongering to be quite troublesome, I don't see what the fuss is all about. Why do individuals need guns when we have the government to protect us?

Neville Chamberlain
2.24.2009 10:07am
Clayton E. Cramer (mail) (www):
There's an historical sense that gun ownership was America's First Freedom, and that is that freedom to own guns and hunt distinguished the American colonies from Britain rather dramatically. Freedom of speech or of the press lagged far behind the freedom to be armed.
2.24.2009 11:39am
Clayton E. Cramer (mail) (www):

The article is published in a magazine whose title consists of a somewhat overblown view of gun rights.
Said by someone who clearly has no idea where government without limits--and a disarmed population--takes you: Auschwitz.
2.24.2009 11:44am
What bothers me is all the people saying the right to bear arms doesn't really matter.
Yeah, so why are some people so eager to take that right away?
2.24.2009 11:47am
Michael Ejercito (mail) (www):

Yeah, so why are some people so eager to take that right away?

Because they support a totalItarian police state.

Back when Illinois passed a law forbidding those convicted of domestic
violence from possessing a handgun, the Chicago police union was
outraged. Their representative went on NPR. He claimed that it is
wrong to take away guns from police because it was their "tool of the
trade". Funny how the host did not ask him why the exception should
not apply to Sammy "The Bull" Gravano. Guns were his tool of the

Anti-gunners do not want police to be held to any standard. Ten years
ago, Ed Hooks posted on talk.politics.guns that if a gun is stolen
from a dwelling and used in a crime, the owner should go to jail.


"My suggestion is that gun OWNERS be held criminally liable for what
happens to their weapons."

He was asked if police officers who lose their weapons should be
prosecuted. Not surprisingly, he wrote, "No."


To quote a reply to his post.


"Oh ok, I see. Another guy advocating a two tier cast system. If
somebody STEALS my guns from a LOCKED DWELLING, I should be jailed,
but if a cop loses HIS gun, nothing should happen to him.

That's pretty much the way those like you always formulate it."

Undeniable proof that anti-gunners are totalitarian sympathizers.
2.24.2009 11:54am
Michael Ejercito (mail) (www):

No group of citizens with infantry weapons can overthrow the government, and when it comes to stopping the government from overthrowing them, explosives matter more than guns. (As demonstrated in many unpleasant places in the world on a daily basis.)

Infantry weapons are more than enough to overthrow the police.
2.24.2009 11:56am
Letalis Maximus, Esq. (mail):
Explosives matter more? Of course they do. And as soon as we get rid of that pesky NFA and its Destructive Device nonsense, a lot of us will have them.
2.24.2009 7:09pm
RichW (mail):
Actually, if you look at Afghanistan, they held off the Russians for quite a long time with basically infantry weapons, a lot of them very old and WWI like. Later we started supplying them with some a bit more advanced stuff but still infantry in style.

Two -- if it came down to it, how many gun owners were there fighting the British during the revolution, many with inferior weapons.

Three -- I am not sure that you could count on the Military to side totally with the government see this concerning the 1932 bonus marches for some history.
1932 Bonus Marches

Never underestimate the power of the people when they get pissed!
2.24.2009 8:35pm
Chas Martel:
One of my very few first cousins, Joe Dessert, was killed by a mass murder in the Buckhead section of Atlanta on July 29, 1999. You can look it up. I visited the murder scene a few days after the event and spoke with folks who were very near my cousin at the time of his death. He could have avoid his untimely demise in several different ways, but he was unprepared to avoid being a victim and it cost him his life.

I had debated gun rights with him prior to his death and he didn't think the right to bear arms of US citizens was important. He thought gun rights activists were foolish in "clinging to their guns." One of the ways he could have avoided his fate would have been to be armed and prepared to defend himself. Well he wasn't. He wasn't prepared to defend himself in any way. His life is an object lesson in the foolishness of believing others, or the state, will take personal care of the individual. Bad decision.

All personal rights are important including the right to keep and bear arms to defend oneself.

The reason Mr. Kopel's article rings true with me is that within days of my cousin's death, then first lady Hillary used the killings in Atlanta as an example to promote her political agenda of state gun control. I've been bitter towards her ever since. I took a very different lesson away from Joe's murder and I'll always remember Billary for using her position to promote her nanny state, big brother agenda. While I, who experienced real grief from the incident, didn't get the chance to to express the lesson I took from Joe's death.
2.24.2009 8:35pm
wpeak (mail) (www):
Please, not that old wank, 'You don't need a RKBA because no militia could compete against the state.'

Only an ignoramus, mendacious twit, or advocatus diaboli would utter this. Those with a little more practical knowledge think otherwise.

First the RKBA doesn't mean you get a 22 rimfire to go mano-a-mano with an M1A2 Abrams.

Properly read it means you have whatever the current infantryman might conceivably carry. Even a touch more broadly, crew served weapons, aka the cannons of today, should easily fit into the TO&E of the modern Militiaman. Note, explosives are already there along with handguns shotguns, modified or not, automatics, knives, etc.

So it really is more a question of training, morale, and commitment, not equipment.

Next, no one said you can't use these weapons to obtain bigger ones.

Third, the total number of combat infantry that the US might field in CONUS is limited. Say 450,000 as a very very optimistic number. This number coincidentally was often ridiculed before the surge in Iraq as insufficient to occupy even that small country.

As a practical matter, using the US Armed forces in suppression of US civilians would be extremely problematic for reasons I think any educated person should be capable of deducing.

So really we are left with the police and the armed citizenry. Again a numerical issue arises. In any state that allows its citizens to practice their RKBA, the police will be outnumbered and outarmed while also suffering from a degree of the same debilitating facts as the military itself.

Ultimately, the only thing that can suppress the armed citizenry in this country would be another armed citizenry, but I am afraid the chances of the northeast and the coasts pulling off the Union Army again are slimmer than getting a handgun in Manhattan.
2.24.2009 8:36pm
Robert R.:
"Madison @ 2.23.2009 9:18pm. If only someone else had thought to put these rights in some sort of order...."

It is not irrelevant that the Bill of Rights submitted to the states in 1789 included not only what are now the first ten Amendments, but also two others. Indeed, what we call the First Amendment was only the third one of the list submitted to the states. The initial "first amendment" in fact concerned the future size of the House of Representatives, a topic of no small importance to the Anti-Federalists, who were appalled by the smallness of the House seemingly envisioned by the Philadelphia framers. The second prohibited any pay raise voted by members of Congress to themselves from taking effect until an election "shall have intervened." See J. Goebel, 1 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 442 n.162 (1971).

Had all of the initial twelve proposals been ratified, we would, it is possible, have a dramatically different cognitive map of the Bill of Rights. At the very least, one would neither hear defenses of the "preferred" status of freedom of speech framed in terms of the "firstness" of (what we know as) the First Amendment, nor the wholly invalid inference drawn from that "firstness" of some special intention of the Framers to safeguard the particular rights laid out there.

from Sanford Levinson's "The Embarrassing Second Amendment" (1989).

The original second amendment, concerning congressional pay raises, was ratified as the the 27th amendment in 1992.
2.24.2009 8:47pm
Clayton E. Cramer (mail) (www):

No group of citizens with infantry weapons can overthrow the government,
You don't need to overthrow the government--just make the risk to the professional military high enough that they can decide which side to support. If a platoon of soldiers is told to kill two hundred angry protestors, for individual officers and soldiers, even if they find their orders distasteful, this is a balance problem. If they disobey their orders, they may be courtmartialed, perhaps subject to summary execution. Follow orders, and there's really no personal risk. Disobey orders, and risk loss of liberty, loss of job, perhaps loss of life.

Now, that two hundred angry protestors have rifles. Yes, a platoon of U.S. Army soldiers would likely still win such an engagement. But the balance has changed. There is a very high probability that many of those soldiers will be killed. Do I disobey orders, and risk liberty, job, or life? If I obey orders, I am also risking my life. Suddenly, any natural sympathies that the soldiers and officers have for the protestors can come into play--and that platoon may decide that they are on the wrong side.

This isn't just theory. During the railway strikes of 1877, there were many National Guard units that were given unlawful orders--and in some cases, they refused their orders (the strikers were better armed), and in others they turned their weapons over to the strikers.
2.25.2009 11:49am

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