Due process and the Second Amendment

In his FAQ on violence, question 15, Sam Harris said:

It now seems to me that there are two ways of approaching this [discussion about guns and gun rights] that may, in fact, be irreconcilable.  The first is to consider the ethical and practical case for guns as a means of self-defense… The second approach is to consider society as a whole, emphasizing the statistics on gun violence.

It is a sentiment I have seen myself time and time again. And I am convinced it is more accurate to say that those against the rights of individuals to own and carry a firearm — colloquially called “anti-gunners” — are actually against individual rights in their entirety. This isn’t to say they are against the idea of rights. What they are against is the individual assertion of rights, that rights are instead to be owned and asserted by a collective, not individuals.

They have no problem with (certain) groups of people having firearms — typically only the police and military. They do have a problem with individuals having firearms.

Recently this sentiment came back to me through a YouTube comment section in which another person was arguing for greater restrictions on firearms using the very common assertions we’ve seen time and time and time and time and time and time and time and time and time…. again. Things like “We just want to make it harder for those intending to do harm to obtain a firearm” and the like.

What’s somewhat unusual is this sentiment: “And with that said, I would gladly give up my ‘right to bare [sic] arms’ if it ment [sic] fewer people to hold me at gun point.” This was at the tail end of a response to me when I said, essentially, that a newer interpretation of the Bill of Rights does not make it de facto wrong, as many anti-gunners argue in light of the fact that the Second Amendment being interpreted to allow for an individual right to bear arms only came about in recent vintage.

But why would you not want to make it harder on that person who will kill? It’s unrealistic to say you can save the world, but if keeping a gun out of the hands of someone who will kill less without one is possible, I am for it.

What this person is again not understanding, or is refusing to understand, is that you cannot restrict firearms to keep them out of the hands of those intending to do harm without removing them first from those who want or need them for self defense. This is why I have said that gun control punishes the innocent more than it protects them. This is why I have said time and again that legislation cannot protect people, especially when you take into consideration the fact that you are not entitled to police protection.

This means that, as the vast majority of people are law-abiding, meaning they won’t circumvent the law to obtain a firearm, gun control leaves those who need a firearm for protection at a complete disadvantage.

Don’t get me wrong, I would certainly like to see it made more difficult for those intending to commit violence. But there are other rights coming into play here. How do you identify those people and take away their right to a firearm without also violating their right to due process? How can you make it more difficult for those intending to commit violence without also making it more difficult on those with a need or desire to defend themselves? In both questions, the answer is quite simple: you cannot.

Due process comes into play here quite well, something few seem to consider. And the fact that, in law, many anti-gunners wish to treat me the same as James Holmes or Adam Lanza is not only categorically unfair, but downright disgusting.

My opponent’s response to this sentiment was quite telling:

I am being realistic. I carry a knife on me at all times, and I can buy a bat for 25 bucks if I need to. In a world where guns have more restrictions, you no longer need to have one for protection. A world with more restrictions on firearms is not an unrealistic one. I am really tired with all this focus on your own freedoms. I am more worried about the safety of the wider population. It’s harder to kill with melee weapons. Period. Even for self defense. Just because you can kill someone in self defense, doesn’t mean you should. Even a scum bag thief has the right to live and be judged in a court of law for their crimes.

First, criminals and outlaws by definition do not obey the law. Restrictions only apply to those willing to obey them until law enforcement can identify and prosecute those who are not obeying the law. And a baseball bat is not a good choice for a defensive weapon. It can be good as a threat, but not as an actual means of defense. Swing from the shoulders and you’ll be clumsy. Swing from the elbow and you won’t have nearly as much force behind it, making it easier to dodge, block, or catch.

But the sentiment that really pissed me off: “I am really tired with all this focus on your own freedoms.”

Tough. Fucking. Shit.

There is one major reason I so adamantly defend individual rights: I must defend them for others to maintain them for myself. There is no way around that, something I have made quite clear. The example I provided to my opponent is similar to what I say to everyone who, in the context of Holmes or Tsarnaev, says the equivalent of “just take ’em out back and shoot ’em and be done with it”:

After all since you’re clearly not worried about my individual rights, you won’t mind being locked up for endless periods of time without trial and without charges being filed. After all the police took you into custody, so they’re certain that you committed the crime, so I’ll believe them so we don’t need to worry about a trial. We’ll just lock you in jail.

What’s that? You have a right to a trial? Well the right to a trial is an individual right. And you don’t seem to care about individual rights, so… Tough. Fucking. Shit.

Our rights are intertwined. Many have said that the Second Amendment is what defends all other Amendments — i.e. the individual right to bear arms is necessary to defending all other rights. This is true only to the extent that our rights are subject to violent threat. Few assert their rights when they’re not being attacked — whether by government or external threats.

At the same time, the right of due process means simply that you cannot be stripped of your liberties without first being adjudicated in a Court. The Sixth Amendment means you have the right to have those accusations heard in a Court while heavily implying a right to be presumed innocent. This means that you cannot lose your right to keep and bear arms without first having been convicted of a felony (pleading guilty or nolo contendre is the legal equivalent of a conviction, as is a dishonorable discharge from the Armed Forces). You can also lose your right to bear arms if you’ve been adjudicated by, quoting ATF form 4473, question 11f, “a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs”.

Yet many, again, seem willing to just abrogate due process. They say that we need to severely restrict firearms to protect us from the “next James Holmes”, which, as I’ve asserted before (here, here, and here), has the effect of punishing the innocent.

So to lay the gauntlet, I’ll put out this question: if you’re unwilling to defend my Second Amendment rights, why should I defend your First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendment rights?