What is Natural Law and How Does It Effect Handguns?

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


Comments

  1. New Handle says

    The headline should say “affect” not “effect.”

    Natural Law, Thomas Aquinas style, is different that Natural Right, Thomas Jefferson style. You seem to be addressing natural right, not natural law, in your references to the Bill of Rights and the Declaration.

    The real controversy outside of academia is whether rights are inherent, or are a product of civil society. Children don’t have rights like citizens have rights. Some people hate that.

    RIghts are negative things, they are designed to keep you safe. Natural law, on the other hand, is what keeps us good.

    What I like about the Adams quotation is that he distinguishes some rights from others. So, at least I agree with him that not all rights are natural ones.

  2. As someone who believes individuals should have the right to own guns and without getting into the topic of natural rights, JP Williams understanding of history and the Bill of Rights is deeply flawed.

    Like many people who are wrong about constitutional matters, JP Williams attempts to assign ahistorical high-flung motivations to actions that in fact were motivated by contemporaneous realities.

    Many actions lead to the Constitutional convention, but one in particular was the issue of Shay’s rebellion in which the government under the Articles of Confederation was almost completely helpless to respond since they didn’t even have the power to raise an army but had to rely on state militias. Since the Constitution granted military powers to the new federal government , many anti-federalists were fearful that a federal government could federalize militias of some states to attack others. Many feared that a standing army could be used to destroy weaker state militias or that future laws could weaken them to such a degree that they would be completely ineffective.

    In this context the subject of the second amendment was largely about states’ rights to have militias and protecting this right from infringement of the federal government. Gun ownership as a personal right was not even argued as part of the debate at the time. I would suggest that perhaps this is because personal gun ownership was simply taken for granted as not even an issue as English Common Law recognized this and at the time there had been no laws seeking to limit this.

    What was an issue was that state armories could not be confiscated by federal authorities and local militias would have rights to use artillery and weapons without seeking approval of the federal government. This latter point was an issue during Shay’s rebellion when a local militia formed to put down the rebellion was denied the use of weapons in the Springfield Armory because Congress was not in session and the Secretary of War claimed it needed an act of Congress to allow use.

    Lastly, I would point out that several of the rights in the Bill of Rights are not individual rights but rather collective ones. Right of the press in the First, the rights of states in the Tenth being the other obvious ones.

  3. The U.S. Supreme Court in Heller referred to “natural law” as it traced the right of armed self-defense back through Blackstone. The Supreme Court’s majority opinion quoted Blackstone’s Commentaries on the Laws of England and noted “the natural right of resistance and self-preservation” was effectuated by “the right of having and using arms for self-preservation and defense.”

    “Natural law” as a legal term was originally based on Catholic legal thought. In the twelfth century, Gratian’s Treatise of the Discordant Canons, defined natural law as follows:

    “Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. It includes the union of men and women, the succession and rearing of children, the identical liberty of all in the acquisition of those things, which I omit, which are taken from the earth or at sea, the return of a thing deposited or of money entrusted, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is to be natural and equitable.”

  4. Everything a previous person said about Shay’s rebellion is correct. It could also be argued, as the previous person in this thread did, that “personal gun ownership was simply taken for granted as not even an issue as English Common Law recognized this and at the time there had been no laws seeking to limit this.” However, it was clearly stated.

    As the Heller case noted, in the 1689 English Declaration of Right stated, “The subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”

    I cannot determine whether this same person is also using The Federalist Papers as a source of authority. If he is, then that belief is misplaced because The Federalist Papers were a debate on the Constitution before it included the Bill of Rights.

  5. John, I am not using just federalist papers. Yes, this was before the Bill of Rights, but the arguments shed light on what was concerning enough to some that the Bill of Rights was necessary. I would also point out that there is record of amendments made and such which are further revealing.

    One other thing I would point to. Madison’s first draft of the amendment was thus:

    “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.”

    This gives further weight to the claim that this amendment was largely about militias.

  6. Todd,

    You are quite right that James Madison placed a conscientious-objector clause in his original draft of the Second Amendment. Justice Stevens, in his dissenting opinion in the Heller case, shares your view of its importance.

    In contrast and on this point, Justice Scalia noted, “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.” He believes the deleted provision was designed to keep Quakers from being compelled to carry weapons in support of military service.

    The Second Amendment does not claim to grant any new rights. Instead, it states that a right that already exists, “shall not be infringed.” Justice Stevens acknowledges this but believes the right being discussed in the Second Amendment is only a collective right to serve in a militia.

  7. John,
    The problem with Scalia’s argument is that, while we he says has some truth, the issue is not that any single piece of evidence “proves” the meaning, but rather that taken with everything else it is does support the idea that the 2nd was just dealing with militias.

  8. Gayle Rightwoman says

    Thank you Judge Williams for such thought provoking analysis.

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