Andrew Langer

When it comes to the individual nature of rights, history has long obscured what the founders intended.  As the years have gone by, the simple, straightforward framework of our government, which laid out limitations on that government’s power and left expansive rights in the hands of individuals, has been muddied and complicated by people either ignorant of what the founders envisioned, or affirmatively interested in subverting that which had been created.  The end result has been a much-too-large and too-costly government eager to able to inject itself in all aspects of an individual’s life.

The Supreme Court’s decision in DC v. Heller yesterday dealt a blow to those who would subvert, and, for the first time in a number of years, shed a bright light onto that elegant Constitutional framework.  The debate, of course, in the Heller case, was over whether the 2nd Amendment protected an individual’s right to keep and bear arms, or whether it was some sort of group right.  Moreover, the case touched on whether the 2nd amendment limited that right to keep and bear arms to certain circumstances, and certain circumstances alone.

The Court’s decision was clear, and it affirmed what many understood the intent of the founders to be:  that the Constitution, in this case as in all others, is a document which limits power, and doesn’t confer rights.  Those rights are inalienable and have been endowed by our creator (to bring our nation’s “enabling” document, the Declaration of Independence, into play here).  This was plain to many from a reading of the rest of the Bill of Rights, especially the last two amendments, the 9th and 10th.

If you understand the 9th and 10th Amendments to the Constitution, you understand the Constitution itself.  All powers not surrendered to the government are retained by the people, says the 10th, and the 9th says that simply because something isn’t enumerated in the Bill of Rights doesn’t mean that such a right doesn’t exist.  And because those 10th Amendments in the Bill of Rights can’t be picked and chosen from arbitrarily, we have to read all of those Amendments in the context of the totality of the Bill of Rights itself.

That’s why a right to privacy exists, though privacy isn’t mentioned anywhere in the Bill of Rights. 

When one puts the 2nd Amendment into the context of the 9th and 10th Amendments, it made the “militias-only” justification for limited the 2nd Amendment’s scope a tenuous and twisted one, facially nonsensical.  The founders were clearly saying that one reason for preventing Congress from interfering in the right to keep and bear arms was to ensure the effectiveness of militias.  But that was only one of innumerable reasons for doing so.  That’s made clear from the 9th and 10th Amendments.  You have a right to engage in whatever lawful activity you want with your firearm—from defending yourself, to hunting, to target-shooting, to whatever.

That’s the ultimate limitation, incidentally—the lawfulness of the activity.  All just law is created out of the intersection between exercises of individual rights.  I have a right to swing my arms around.  I do not have a right to hit you with them.  You have a right to hold up your arm to block my arm should it be swinging towards you.  I do not have a right to prevent you from doing so.  Should I hit you, there are laws that you can use to remedy your grievances against me.

The same holds true with firearms.  I have a right to own one and to use it.  I do not have a right to shoot you with it.  I do not have a right to use it in a manner which will endanger you or your property.  I do not even have a right to threaten you with it.  All of those uses would violate your rights, and therefore laws protecting you from those infringements on your rights are perfectly constitutional.

But the Supreme Court rightly recognized that I have rights too.  They thankfully affirmed, once again, that the Founders were brilliant in their vision for a free and civil society, and in recognizing that simply because they couldn’t imagine a possible right, that didn’t mean that the right didn’t exist.


Andrew Langer

Andrew Langer is President of the Institute for Liberty, an organization that works to ensure that America stays both exceptional and strong.