The Second: Unalienable or Inalienable?

Colonel Dan, SASS #24025 Life, Regulator


Early next year, the US Supreme Court is scheduled to hear McDonald v. Chicago—a monumental case for gun owners everywhere.  Why?  It will address the critical question of the Second Amendment’s applicability at the state and local level.  For those who thought Heller v. D.C. settled this, recall that Heller only considered D.C. gun laws.  The anti-gunners position in the McDonald case revolves around the argument that D.C. is not a state but a federal district. Therefore, while the Second may apply at the federal level it does not apply at the state and local level. The decision in this upcoming case will not only concern Chicago, but will impact every state in the union.  McDonald is therefore much more important than Heller.


Keep in mind the Seventh Circuit Court of Appeals has already ruled that the Second does NOT apply to state or local governments ergo the question is being reviewed by the Supreme Court.


I’ll leave arguments on Constitutional law to those most qualified and instead focus on a question I feel is at the very foundation of the Second Amendment—is man’s right to bear arms an unalienable right—a Creator endowed right which cannot be infringed upon or is it an inalienable right subject to state control?


Let’s define our terms.  In many legal circles there is a big difference between unalienable and inalienable and it could be significant in this and future cases.  I consulted several legal references and came up with the following:


"Unalienable: incapable of being alienated, that is, sold and transferred." Black's Law Dictionary, Sixth Edition, page 1523:


You cannot surrender, sell or transfer unalienable rights under any circumstances.  They are a gift from the Creator to ALL individuals.


Inalienable rights: Rights which are not capable of being surrendered or transferred without the consent of the one possessing such rights. Morrison v. State, Mo. App., 252 S.W.2d 97, 101.


You can surrender, sell or transfer inalienable rights by consent—consent legally coming via the vote of elected representatives no doubt.  Inalienable rights are not inherent and can therefore be controlled by government.


If you believe as our Founders did, that man was endowed by his Creator with certain unalienable rights, then those rights cannot be infringed upon or abrogated by man, court or government at any level.  Our Founders, many being lawyers themselves, chose their words with extreme care throughout the Declaration and Constitution and the word they chose in this case was ‘unalienable’  “…men are endowed with certain unalienable rights and that among these are Life, Liberty and the Pursuit of Happiness.” 


Now that we have this sorted out, is the right to keep and bear arms one of those unalienable rights to which our Founders referred?


Even if you say the concept of unalienable rights cannot apply to guns because they are inanimate objects that were not around when the Creator brought mankind on the scene, you have to admit that the right of life does apply.  Every animal, including man, is endowed with an instinct for self-preservation i.e. life. All creatures have a wide variety of self-defense mechanisms they use to preserve that life.  Some use teeth and claws, some use sharp quills, venom, horns and hooves, and some of the higher species actually use tools.  The great apes for example use clubs and rocks.  Man being the highest species on the chain of life has created some very sophisticated tools. The gun is just such a tool—a self-defense mechanism used to exercise his unalienable right of self-preservation.


Given our logic thus far, I submit that while the gun alone, as an inanimate object, cannot be an unalienable right, to deny man the mechanism or tool he uses to exercise his unalienable right of self-preservation i.e. life is to seriously infringe upon that right.  Without the mechanism or tool, his ability to defend himself is practically nullified.  Take away an animal’s teeth, claws, quills, venom, horns or hooves and what you’ve done to their God-given right of self-preservation is to abrogate the Creator’s intent.  Take away the great apes access to rocks and clubs and you’ve again annulled the Creator’s plan for that animal.  Take away man’s access to arms and you’ve infringed upon his endowed unalienable right to preserve his life. 


As an aside, I view most gun restrictions as “sham regulations” as they’re known in legal circles. That is, dishonest government actions which deceitfully claim to be doing one thing, in this case “promoting public safety” but in reality have the actual objective of thwarting constitutional rights, i.e. the right to preserve and defend life.


Had the Founders used the term “Inalienable rights” in place of “Unalienable rights” the argument could be made that your right to keep and bear arms can legally be transferred from the individual to the state through a government established process of consent.  But that is clearly not the word they chose and words mean specific things…particularly in law.


“But we don’t want to take away your guns, we just want stricter controls to keep them out of the wrong hands” says the anti-gunners’ next argument.  OK, since we’re dealing with precise definitions here let’s look at another phrase specifically chosen by the Founders.  “…shall not be infringed.”  According to the Webster Dictionary:


SHALL:  “Determination or promise. Inevitability. Command. A directive or requirement. To have to. MUST.”  NOT:  “In no way; to no degree. Used to express negation, denial, refusal or prohibition.”  BE: “Make: cause to become.”  INFRINGED: “To encroach upon something.”   Another way then to state the concept of the Second Amendment would be:  “The right of the people to keep and bear arms must in no way or to no degree become encroached upon.”


In summary then, what does all this mean?  In my view, it simply means the Founder’s meant exactly what they wrote and wrote exactly what they meant.  Our right to keep and bear arms is unalienable not inalienable as it pertains to our endowed right to the preservation of life. It therefore cannot be infringed upon by man, court or government at any level.  Just the view from my saddle…


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