by Judge Gerald A. Williams
North Valley Justice of the Peace

The concept of natural law has returned and become a part of public debate. In its most basic form, a belief in natural law is a belief that everyone is entitled at birth to a set of natural rights that guarantee their personal safety and property. Such rights are fundamental and cannot be restricted by individuals or even by governments. Not surprisingly, this idea is not without controversy.

In the United States, the best known declaration of natural law theory is in our founding document. Our Declaration of Independence states simply and poetically: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

The U.S. Supreme Court relied heavily on natural law concepts in the recent case of District of Columbia v. Heller, 128 S.Ct. 2783 (2008). That case concerned a gun ban in Washington, D.C., that was extreme by any definition.

The D.C. handgun ban made it a crime to carry an unregistered firearm and the registration of handguns was prohibited. Mr. Heller was a court security officer at the Federal Judicial Center. He was required to have a handgun at work; but was not allowed to have one at home.

In Heller, the Supreme Court adopted a natural law argument and agreed, by a 5 to 4 vote, that the Second Amendment, like the First and Fourth Amendments, restated pre-existing rights and that those rights exist with or without the Constitution. The majority believed that the Second Amendment protects an individual fundamental right to keep and to bear arms, including handguns, for lawful purposes.

But what about the “well regulated Militia” language in the Second Amendment? Doesn’t that limit individual rights? The short answer is no. The Second Amendment guarantees rights to “the people,” not to an army. If it is a collective right, then what would that right be? Some have argued that the right guaranteed in the Second Amendment really means that individuals have the right to join the military. Such an argument is absurd in part because military members neither pick their own weapons nor need a Constitutional right to carry them.

Others have claimed that the militia language really refers to the modern national guard; but a militia and the national guard are not the same thing. Many states have militia statutes that basically make everyone a member. Arizona’s Constitution declares that everyone between the ages of 18 and 45 is a member of the state militia. In contrast, the Arizona Army National Guard is a uniformed armed force that has both a federal and state mission. A guard unit generally reports to its state’s governor; but it can be mobilized and placed under federal control.

When Thomas Jefferson wrote of the right to life, liberty and the pursuit of happiness, it is perhaps no accident that the right to life, which includes the inherent right of self-defense, is first on this list. While many modern day Americans might find natural law arguments troubling, they were certainly clear to the gentlemen who founded our great nation. John Adams reportedly stated the following.

“Many of our rights are inherent and essential, agreed on as maxims and established as preliminaries even before parliament existed. We have a right to them, derived from our Maker. . . . Liberty is not based on the doctrine that a few nobles have a right to inherit the earth. . . . It stands on this principle, that the meanest and lowest of the people are by the unalterable indefeasible laws of God and nature as well entitled to the benefit of the air to breathe, light to see, food to eat and clothes to wear as the nobles or the king. That is liberty and liberty will reign in America.”

Judge Williams is the presiding justice of the peace for the Northwest Regional Court Center. His column appears monthly in The Foothills Focus