Beware the People Weeping

Ed Harrison: And, yeah, we'll put the old boy on himself. You know, the forgotten man angle. Tear their hearts out.
Bob Wallace: Sorry, Ed, but that's out. We're not capitalizing on the old man's hard luck. No chance.
--White Christmas

Judge Nap adds to our recent discussion of emotional capture and institutional failure in the context of gun control. Of course, he does it in a much more eloquent manner than these pages ever could. In my view, this is one of the Judge's more insightful pieces (and that's saying something). Reading and re-reading is recommended.

I would like to discuss several of his thoughts here.

Putting traumatized kids before television cameras soon after a tragedy virtually guarantees emotional capture, or what the Judge calls 'madness' among the children and onlookers. Madness in this sense is "the passionate and stubborn refusal to accept reason." Madness is common after a tragedy. The Judge cites poet Herman Melville, who after witnessing the railroading of individuals accused of being involved with President Lincoln's assassination, wrote, "Beware the People weeping. When they bare the iron hand."

The lesson: it is nearly impossible to argue rationally with tears and pain. Take a step back from a tragedy before addressing it with 'legalized' force.

The concept of natural rights can be viewed religiously or aesthetically. Those who believe in an all loving God see natural rights as the claims and privileges attached to humanity by Him. For those who do not accept the existence of a Supreme Being, the argument for natural rights still holds. Because it is obvious that humans are the superior rational beings on earth, our exercise of reason leads us to the exercise of freedoms that are integral to our humanity and independent of government. The first among these is our right to life--the right to be and to remain alive.

The right to life implies the right to defend one's life. Our founding ancestors recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments (in place then and in the future) would respect the right to keep and bear arms as a natural extension of the right to self-defense.

The Supreme Court has characterized this right as 'pre-political'--meaning that the right pre-existed government. If it pre-existed government, then it must be a natural right, i.e., it must come from our human nature. When Judge Nap asked the late Justice Antonin Scalia why he used the term 'pre-political' instead of 'natural' when authoring the majority opinion in the landmark District of Columbia v. Heller case, Scalia replied, "You and I know they mean the same thing, but 'natural' sounds too Catholic, and I am interpreting the Constitution, not Aquinas."

The Heller opinion also recognized that the Second Amendment was written soon after a war had been fought against a king and an army that was regarded as the most powerful army on earth. That war would surely have been lost had not the colonists borne arms equal to or better than those of the British troops.

The Second Amendment was not written to protect the right to shoot deer. It was written to protect the right to defend against acts of aggression, whether those acts are perpetrated by bad guys, crazy people, or tyrannical government. Heller articulated that the right to self defense means that individuals have the right to use guns that are of the same level of sophistication as their adversaries.

Gun grabbers are unwilling to accept this. A colleague recently asked the Judge on air: Suppose we confiscated all guns? Wouldn't that keep us safe? The Judge replied that we'd need to start with the government's guns. No, his colleague said. What if we confiscated guns from the civilian population only?

An extension of this question would be: What if we confiscated 'assault style' weapons from civilians but left them in the hands of government?

To the reasoning mind that grasps the concept of institutional failure, the answer is obvious.