This interview with Adam Winkler came to me via an email-based newsletter from the Brennan Center for Justice. (I subscribe to see what the other side is up to — when I can stomach reading what they say.) Winkler prides himself on being above the fray — or smarter than those on either side of the gun rights/gun control argument. Ostensibly, Winkler says that the right of self-preservation is part and parcel of the Second Amendment and that gun ownership is endemic to America. He does not mention natural rights as the core tenet, even though he does admit that people have the right to protect themselves.
In terms of his off-target argument, he is way off base when using musters and inspections as justification for gun control. He starts off all right, with an accurate description the role of the militia in the founding era, but then veers off to the left. The idea behind the musters was to make sure that people had guns, and that their guns were in working order.
Winkler does get a few things right, like the ridiculous so-called “assault rifle” ban during the Clinton era, pointing out that the difference between a banned AR-15, and a hunting rifle is a matter of appearance rather than function.
Winkler advocates eliminating private sales of guns. In one breath he admits that gun laws restricting ownership do nothing to reduce crime, but in another wants ever stricter regulation. He is inconsistent, at the very least. The sanctity of private property was definitely a major element in the design of the Constitution, but Winkler blithely ignores the fundamental natural right to derive the benefits of one’s property as one sees fit.
More disturbing, however, is the implicit and explicit assumption that rights are handed out by virtue of the Constitution and the Bill of Rights. At several points in the video, Winkler refers to this, even when seemingly arguing on the side of gun ownership and the right of self-defense. What Winkler and others like him fail to recognize is that the Constitution and the Bill of Rights were written to limit government, delegating only those powers required to fulfill those responsibilities defined in the Constitution. The Bill of Rights was written to underscore the limits placed on government – explicitly.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Note all of the strictures on government. There are no prohibitions on the people within these amendments. Even the Sixth Amendment is guidance for what the government must provide – in essence limiting the options to it in regard to trial by jury.
When Winkler bemoans the vagueness of the Second Amendment with respect to the rights it is giving to the people, he gets it all wrong. The Second Amendment, like the rest of the Bill of Rights, is a limitation on government, not a grant by government. During the interview, Winkler mentions that he is an advocate of a living Constitution. That explains his neglect of natural rights referred to at the beginning of this post. By definition, advocates of a living Constitution reject the concept of natural right or natural law. The idea of “inalienable rights” independent of the state, is far too confining for it limits what government may do, exactly what the Founders intended and what the Bill of Right is all about.