I grew up in a house with guns. Some were family heirlooms; most were for hunting; one was for personal protection. (My childhood home was shot into in a not-so-random drive-by shooting.)
I have fond memories of rabbit hunting as a teenager with my father and brother and more recently waterfowl hunting with my uncle. I understand the passion of those who will give up their guns only when pried from their cold, dead hands.
When I hear the arguments of those who defend their right to own guns as a necessary safeguard against a too powerful, tyrannical government, I am reminded of the centuries-long struggle for individual liberties against the power of the state. That struggle can easily be traced at least as far back 1215, when the Magna Carta declared that the feudal barons could not be punished by the king except through “the law of the land.”
Later, political philosophers such as John Locke, in his Second Treatise of Government, explained how the rule of law limited the power of government and provided the framework for a secure, civil society.
Locke’s views are echoed in Thomas Jefferson’s inalienable rights of life, liberty and the pursuit of happiness, and find practical implementation in our Constitution, with its separation of powers and system of checks and balances. In this structure, an essential check on a too-powerful executive (or legislature) is judicial review by the courts to declare acts by the president (or Congress) unconstitutional.
In the landmark case of Marbury v. Madison, Justice John Marshall concluded that it is “emphatically the province and duty of the judicial department, to say what the law is.” Therefore, an executive or legislature cannot arbitrarily deprive a person of his or her “life, liberty, or property” (in the words of Locke) without due process, and it is the role of the courts to stop the potential abuse of power if they try.
What does this have to do with the gun control debate?
Regardless of whether one agrees with the practical efficacy of gun ownership to protect oneself against criminals or against an over-reaching government, it is not a handgun or an assault rifle but rather the rule of law, due process and equal protection that are the very best protections of our civil liberties. As is often seen in new democracies emerging from previously dictatorial regimes, an independent judiciary is essential to a free society.
What is an “independent” judiciary? One that acts fairly and impartially, considering what is just, not what is popular, and makes decisions grounded in the rule of law, without concern for politics, the demands of special interests groups or even the popular opinion of the majority.
In contrast, if judges become dependent and subservient to another branch of government, or popular opinion, or a particular political party, then their decisions may be guided by considerations other than the impartial rule of law. Justice then is no longer blind and the scales are no longer balanced.
North Carolina has been blessed with wise and fair judges, an efficiently run court system and civic-minded attorneys engaged in public service. But if we take our judicial system for granted, if we deprive it of the resources it needs, if we allow politics and special interests to interfere with judicial elections and unbiased decision-making, as some of the actions before the General Assembly would do, we jeopardize this first, last and best defense of our liberty.
If those who are so passionate about the Second Amendment were as equally passionate about and supportive of an independent, adequately funded judicial system and Article III of our Constitution, then the intent of the Founding Fathers would be realized, the fears of tyranny would be lessened and our freedoms would be more secure.
Gray Styers is president-elect of the Wake County Bar Association and the 10th Judicial District Bar.