British Prime Minister David Cameron. (courtesy telegraph.co.uk)

It is oft said in gun rights circles that the Second Amendment protects the first, as well as the other enumerated (and un-enumerated) rights in the Bill of Rights. Strictly from a Constitutional Law perspective, I’ve always thought this to be a little facile. The Fourteenth Amendment has actually played a huge role in protecting and advancing all of our civil liberties; and without a strong right to free speech, the Second Amendment wouldn’t be in anywhere near as good shape as it is. The amount of times that the right to keep and bear arms has actually counted in terms of making a true difference in American politics is . . .
incredibly small. The exceptions are notable in part because of their rarity. Only the Third Amendment arguably gets less play. (For the record: they’ll take the keys to my guest bedroom from my cold, dead hands.)

Still, I’ve often wondered if there is a difference in the moral fiber of a citizenry whose government is prohibited (more or less) from interfering with the right to keep and bear arms.

Is there a correlation between the existence of a universal right to keep and bear arms and a people being more willing to fight for their rights when under threat by a government acting in the name of national security? Perhaps the very fact that firearms are at the ready in extremis makes Americans less willing to take government nonsense.

In the United Kingdom. David Cameron’s Conservative government recently won re-election. Most of the news coverage focused on the failure of pollsters to predict the Tories’ win, the crushing of the Liberal Democrats, the virtual disappearance of Labour in Scotland at the hands of the Scottish National Party, and the strong vote total of the UK Independence Party. One thing hasn’t got much play: the Tories’ plans for the rights of British citizens, which happens to be outlined on their website:

We’re committed to tackling extremism – and defeating it.

As the party of one nation, we’ll govern as one nation – and bring our country together by actively promoting British values, like democracy, the rule of law and equal rights.

These values are what define us as a society and to belong here is to embrace them.

We’ll confront extremism with new powers that are expected to include:

* Banning Orders for extremist organisations that incite hatred and Extremism Disruption Orders to restrict people who seek to radicalise the young and vulnerable
*Powers to close premises where extremists seek to influence others
*Strengthening the powers of the Charity Commission to root out charities who misappropriate funds towards extremism and terrorism
*Further immigration restrictions on extremists
*A strengthened role for Ofcom to take action against channels which broadcast extremist content

We’ll also review the application of Sharia Law in this country and do more than ever before to help isolated communities, uniting the country behind our British, pluralistic values.

Those values are superior to anything the extremists offer. We will bring communities together to defeat extremism in all its forms and create a better future for our whole country.

It’s not a bad list. Limiting immigration by people likely to be terrorists, or cutting funds to organizations likely to support terrorists at home, seems like a good idea – as long as we’re all on the same page with regard to what the word “terrorist” means, anyway. But what on Earth is an “Extremism Disruption Order“? The Guardian offers a description:

The orders, the product of an extremism task force set up by the prime minister, were proposed during the last parliament in March, but were largely vetoed by the Liberal Democrats [the Tories’ former coalition partners] on the grounds of free speech. They were subsequently revived in the Conservative manifesto.

The measures would give the police powers to apply to the high court for an order to limit the “harmful activities” of an extremist individual. The definition of harmful is to include a risk of public disorder, a risk of harassment, alarm or distress or creating a “threat to the functioning of democracy”.

The aim is to catch not just those who spread or incite hatred on the grounds of gender, race or religion but also those who undertake harmful activities for the “purpose of overthrowing democracy”.

They would include a ban on broadcasting and a requirement to submit to the police in advance any proposed publication on the web and social media or in print [emphasis added]. The bill will also contain plans for banning orders for extremist organisations which seek to undermine democracy or use hate speech in public places, but it will fall short of banning on the grounds of provoking hatred….

This is far from the first time that H.M. Government has tried to restrict the speech of its citizens. And I’d like to think that this is the sort of law that would get laughed out of Congress – recent wrangling over the renewal of the USA PATRIOT Act notwithstanding, It would certainly be a tough sell to the U.S. Supreme Court. More importantly, a lot of people would be making a lot of noise about it.

That can’t just because we have a Constitution and a Bill of Rights, with hundreds of years of jurisprudence behind us. The British have those, too. Perhaps it’s the monarchy?  Countries with a better track record on civil liberties — such as the Netherlands — also have a Royal Family.

I suspect that the British peoples’ willingness to trade a little liberty for (theoretical) security has led them to devalue their other rights as well. No, I haven’t done a research paper on the subject (though if anyone’s willing to fund that, call me). But the fact that two countries with a shared culture could come to increasingly diverge on civil liberties is strange, no?

Americans who seek civilian disarmament often tout Britain’s gun control laws as an aspirational ideal. But Britain is a cautionary tale for civil liberties. America would do well to steer clear of its example, in many ways. The protections afforded by the Second Amendment may not be the key difference between the two countries in this regard, but they might.

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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54 COMMENTS

  2. Considering how much of the actual Bill of Rights still exists, the answer is a resounding……NO.

  4. But Britain is a cautionary tale for civil liberties. America would do well to steer clear of its example, in many “ways.”

    Actually we already did that, for precisely the reasons you cite, in 1776.

    • Similarly, the traits that makes Americans value armed personal defense are the same traits that make Americans care about the right to free speech.

      I am an Anglophile, but it’s more historic – I like Brits from 100 years ago. I really do think that the end of WW II and the loss of the remnants of the Empire just crushed their spirits. They were on the winning side in both WWs I and II, and yet were gutted by those wars – financially, demographically and morally.

    • 2nd protects 4th, if and only if you can shoot an agent of government to prevent an armed home invasion robbery and not go to prison for it.

      • Correct. As I commented further downstream, the weakened implementation of the 2A today is dangerous to Liberty. It has lost some of its deterrent value and direct utility due to infringement by government.

  7. Ultimately it does. I believe Mao was accurate when he stated that political power proceeds out of the barrel of a gun.

    • Ahh but so does freedom. Even the most despotic politician can be killed by a single bullet, the fact that we would catch the guy is a small comfort after the 408 chytec has added another hole to ones corpus.
      Sure we can protect a few people like the president with 99.99999999 percent certainty, but it is way to expensive to extend to even upper level buerocrats. Basicly the third in command and lower at the local IRS or EPA office, absent early detection of a threat is on his/her own.
      This makes for a kind of Cold War , between citizens and the state.

  8. For the first 200 years, yes the Second Amendment has protected us. For the past ~40 years we see how the federal government is trying to chip away at our rights to bear arms for the security of a free state by limiting what we can and cannot own while pretending to keep to the spirit of the 2A.

  9. Just to be contrary, how about “it’s writing on a piece of paper/parchment and doesn’t protect a gosh-darned thing.” Only people can protect things.

    Well, armor plate can, too, so I suppose if you inscribed the 2nd and the 14th on some nice Chobham armor…..

    • Of course, the right to keep and bear arms behind the Second Amendment is what most are really talking about. With such a clear message as shall not be infringed, the People would’ve been justified and prudent to have taken up arms at first government infringement. They didn’t and here we are; a watered down implementation of a protection on that which is necessary to the security of a free state. Our free nation began really circling the drain once government was allowed to infringe upon the individual right to keep and bear arms. There were losses to Liberty before and after but none were so detrimental in the long term.

      • My point remains the same. A “right” protects nothing. It’s even less useful than “Armor, 1/4″, Parchment, Infantry, For The Use Of.”

        People fight for their rights – rights don’t fight for people. 😀

  10. How many times in human history has a corrupt government been overthrown by the populace? It seems naïve to believe that we should put our trust in government, and our founding fathers exerted all due effort to limit governmental power. It seems to me there are only two mindsets on this topic. Those who trust government and see no evil. And those who do not trust government and know there is evil. Where there is evil, the good must remain eternally vigilant. Our founding fathers wrote the 2nd Amendment to remind not only the People but the government as well of the need for that vigilance.

    • +1

      The deterrent value of the 2A is immeasurable. That deterrent has permeated from the founding of this nation. It also serves as a reminder for the People to alway be armed and guard the RKBA jealously.

      Allowing government infringement, even as much as has been allowed so far, is suicide for a free people.

  11. The only reason we are arguing the Constitution and the Bill of Rights is the 2nd Amendment. Chuck it at your peril.

    Anyone wanting to play any other stupid side-game better defer and note that it’s nice that someone wrote it down, but even if it hadn’t been recorded, then it would just be a gun fight, thank your lucky stars, and shut the h_ll up.

  13. The way I’ve described it in the past is that the 2nd Amendment exists for when the other 9 fail. (I.e. If the Bill of Rights).

    • The deterrent effect of the 2A has been influential throughout. It isn’t just when “the others fail.” Who can measure just how much the individual right to keep and bear arms has kept tyranny in check since the beginning? Today, we look through the lens of a dilute protection and not as if we still retained the full protection of the 2A. Where are our cannons? Where are the big guns? Where are the other arms? We have a watered down 2A now. Although it is still a deterrent, it’s not as much of one compared to most of our history. It’s no surprise to me that tyranny is rising in America. We’re almost neutered.

      • Indeed. And I’ve said much of what you say there when that short phrase opens the door to conversation. 🙂

        Much of the problems that you mention comes from two issues.

        1) there are too many 30 & 40 something’s willing to trade security for liberty. Oddly, while some of the worse if that crop are in their early 20’s, I’m also seeing that age showing the most “enough is enough,” attitude.

        2) Too many Americans are slow to anger where the government is concerned. We are probably the most tolerant and libertarian people in history. Socialists and other totalitarians have a great deal of expertise in taking advantage of our good nature.

        There IS a reawakening going on, but there is a lot of inertia when you’re talking 350 million people.

  14. One thing to consider here is that all of the rights are important. If one is lost, others will be much easier to remove. I think that was the point of the main topic. It is like a large building. Take out any of the support structures and the rest will likely come down as well.

  15. Unfortunately, I was not able to read the article. Based solely on the title, my assessment is that the Second Amendment only protects the first if someone is willing to actually use force of arms.

    • Aye.

      Like with the BS rape story in the other TTAG article, if one isn’t willing to use those arms, then there isn’t much value in being armed. The woman claimed that she was armed but wasn’t willing to use it. In her mind, being armed wouldn’t help someone stop a rape because she wasn’t willing to use her gun to stop her rapist. Here, we see that the 2A might not protect the rest because we aren’t willing to use the right to keep and bear arms.

  16. I’ve said it here before, and I am now saying it again. If it were not for the second the rest would be gone. Or at the least rewritten to suit the desires of the left.

  17. The author states that the number of times the 2nd amendment has actually been sued to protect the others, or liberty in general are notable for their scarcity, which is true on the face of it. It is true there have been very few times citizens have needed to take up arms to protect their natural rights (though not as uncommon as some might think… look up the “Battle of Athens” in 1946, when private citizens took up and fired arms against a corrupt unfairly elected government in Tennesee, or more recently the incidents on the Bundy Ranch). But while these events of actual arms-bearing are fairly rare, I think it is disingenuous to suggest that the 2nd amendment doesn’t serve to protect our rights much more often than those isolated incidents. The existence of an armed citizenry is a huge deterrent to gov’t tyranny. The 2nd amendment need not be “exercised” by actually taking up arms, merely possessing those arms, or having the ability to possess them is usually sufficient to reign in any nascent opression from the gov’t. Think of nuclear weapons. They’ve only been sued in warfare twice, yet most student of history and geopolitics would agree their mere existence and their deterrent qualities have served as a peaceful moderating force between world powers.

    • I think you have found the correct pulse of the matter. To which I’d like to add one more observation. Clausewitz commented that in warfare, quantity has a quality all its own.

      My mens of history is that in America the civilian inventory of guns has always been about equal to (or greater than) the civilian population of males of military age. Today, it’s better than double that demographic.

      Now, then, consider other countries and other eras. Where else, and when, has this been true? Perhaps in England in the era of the long-bow. And, conversely, where there have been arms, where have these been not so numerous?

      No doubt there have been plenty of nations and times where there were some arms but they weren’t so numerous among the common folk to have enabled them to oppose government forces. Under such circumstances, tyranny could prevail notwithstanding some de facto liberty of arms.

      For the RKBA to prove effective, it seems essential that the number and power of arms in civilian hands must outmatch the corresponding arms under control of the potentially tyrannous government. Under such circumstances the tyranny of government will be checked by the contingent risk of an uprising. What will you observe? Nothing! Government is held in check, not daring to act too aggressively.

      Where the people have access to some arms, but not many powerful arms, then tyranny will prevail. Arms in the hands of the people will seem ineffective.

      Evidence in each case (nation and era) must be evaluated carefully to draw the correct conclusion.

  18. The second amendment is the last line of defense for all the rest of our constitutionally protected rights. But in that regard, it is a bit like a constitutional “self-destruct” (or “reset”) button; by invoking it in defense of our other rights, we would only be doing so against a tyrannical government that has disregarded the constitution. After invoking it, we would basically be starting over. The second amendment only gets invoked in defense of our other rights once all other options have been exhausted:

    Soap Box -> Ballot Box -> Jury Box -> Ammo Box

    That said: the threat implied by the second amendment acts as a deterrent to would-by tyrants – sort of a Cold War-esque Mutually Assured Destruction detente between law-abiding free people, and wanna-be statist tyrants in government.

    • …-> Match Box -> Pine Box.

      But you are right on point, I think. And, many of us will gladly run that list if that’s what it takes.

  20. The second Amendment does NOT protect the First or any others. But it does protect the RIGHT that defends all other rights.

    • As to the difference in cultural respect for civil rights that the article is skirting – it has been said that the difference between those cultural attitudes is the difference between being a subject and being a citizen. I can’t say i disagree with that assessment.

  21. For all intents and purposes the 2nd Amendment has been reduced to a state by state privilege. At the same time we have seen much of the remaining Bill of Rights undermined, ignored, and eroded. The privilege of carrying a pistol and/or owning a rifle or 2 does not and has not prevented this erosion of rights from taking place. One could argue it would have advanced much faster without the 2A in place, and that may be true.

  22. The protections afforded to the people in the Bill of Rights and the 14th Amendment work in synergy. No one protects all the others. What does protect our rights are the courts, when judges with an agenda aren’t busy rubber-stamping statist laws.

    Where would we by without Heller, McDonald, Moore v. Madigan etc.? I don’t know, but I think we’d be in big trouble.

  24. I agree with Circuit Judge Alex Kozinski’s observation, that the 2nd amendment is in part a doomsday provision, one which political history has indicated is worth the trouble. From other points of view the amendment allows the law-abiding to protect themselves until they can obtain more broadly-effective relief against local crime.

    In any case the rights enshrined in the U.S. Constitution are exactly those demanded by the representatives of that super-majority of states which necessarily and rightly shapes the federal constitution of a republic. Every two-bit popular majority wants, in the passions of a moment, to reshape the freedoms of others. Allowing that to happen to fundamental freedoms has proven disastrous in the past. There is no reason to think today is different.

  25. In theory, yes. In practice, given the present state of affairs – i.e. the federal government pissing all over the 4th, 5th, 9th and 10th, and actively encroaching on 1st and 2nd, and the notable lack of militias wielding their “Molon Labe” engraved ARs storming the White House under the Gadsden flag – I’d say no. It was an interesting experiment, but the result is clearly negative.

  26. We have to be cautious even with free speech.

    Is it perfectly okay for someone to call for the execution of all women, or men, or children, or Jews, or Germans, or Latinos, or Japanese, or Buddhists, or any other demographic??? I say no.

    In other words I argue that you cannot legally use “free speech” to attack other rights (such as the right to life) … just as you cannot use the right to keep and bear arms to attack other rights.

    As long as you are not using “free speech” to attack other rights or slander someone, any other speech should be legal.

    • Define “call for”. There are plenty of threads here on TTAG where people pretty much call for the extermination of Muslims. Given that this is highly unlikely to actually translate into action, do you really think that such speech should be regulated? If so, how do we set an objective standard, and who decides whether it applies in any given case?

      What happens if someone claims that e.g. expressing support for Palestinians equals calling for the extermination of Jews?

      Look at the practical experience in all other countries that have hate speech laws. Does it look enticing to you?

      Nah, I think the “imminent lawless action” standard that is the one currently in force is the right one. Once you start regulating hate speech in and of itself, it’s too easy to redefine what “hate speech” is later on.

      • You bring up very good points. For those reasons a HUGE amount of caution and extremely narrowly defined limits would be in order.

        When I provided the example of calling for the death of a demographic, I meant exactly that. Expressing support for some demographic is not the same as calling for the extermination of a demographic.

  27. Just look at how well the GOP has violated our rights without messing with the 2nd.

  28. Search “This is what happens to a disarmed populace” for anecdotal evidence. Isn’t that the whole point of that series? It creates a natural, subliminal deterrent effect, similar to the deterrent effect it has on crime as CC licensing goes up.

  29. 2A does protect the rest, but this is from the perspective the others get into trouble and require the ultimate tool. So yes, the 2A does protect the rest, but it would only be in an extreme condition, a last resort, the 2A would likely come into play for the sake of this discussion. For the most part it’s a continuum, a sliding scale, sometimes one does the job and at other times another is applied.

  30. The 2A is protecting the individual right to keep and bear arms. That is what most are referring to and not a sentence on a piece of parchment. If you strip away all other rights, only the RKBA can ultimately protect Liberty. The idea behind the 2A protecting the others has always had two meanings for me. The first is that there is a deterrent value in a free people being well armed. The second is that nothing protects a free people quite like being well armed. No amount of speech will stop an enemy, foreign or domestic, when they are determined. The other protections do serve as protection for the 2A up to a point but the actual RKBA can stand on its own for protection.

    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.

    The problem is that our government is no longer actually restrained by the Second Amendment. It has infringed upon it and thereby weakened it. Today, we are comparing protections afforded by a bastardized implementation of the 2A and not the full strength protections of shall not be infringed. The more that shall not be infringed is trespassed, the more all other liberties are at risk. Ultimately, there is nothing to deter a government from infringing upon other rights except violence and force in the long run.

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