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Bill Heid And Constitutional Scholar John Eidsmoe Give Piers Morgan A Historical Lesson On Gun Control with John Eidsmoe – Episode 139

According to Alex Jones on a recent appearance on Piers Morgan Tonight, should the gun grabbers attempt to take away the constitutional rights of the American people, a second revolution would be in the making. But is the answer to this Orwellian 1984 society we find ourselves in, actually another 1776?

What many people don’t understand is the American Revolution was a byproduct of a certain worldview, one that goes back hundreds of years before 1776, from the very concerns that troubled the colonial world and culminated in a single question—where does law comes from? The answer to that question is what framed the American Revolution.

Off The Grid Radio
Ep 139
Release Date January 18, 2013

Bill:      And thank you, everybody, for joining us today. We hope we do have some better ideas for not only off the grid living but for on the grid living. Today we want to talk a little bit about the second amendment today and I’ve got our good friend, John Eidsmoe with us. John, of course, is the author of Christianity and the Constitution. He is a law professor—still is—and really looks at the law from a Constitutional standpoint. John, welcome.

John:   Great to be with you again, Bill. I hope everybody is fine up there?

Bill:      Yeah—everything is great up here in beautiful, sunny Thomson Illinois. It’s always a pleasure to talk to you. There is so much on the second amendment right now and of course, we’ve got all this barking going on back and forth. What I wanted to do is talk a little bit about just the foundations. In other words, I don’t know, John, if you had a chance to watch the Piers Morgan, Alex Jones… I wouldn’t call it a debate. I would call it maybe like a scuffle that was on CNN. And if you hadn’t watched it, what it amounted to is—and Alex Jones is certainly a friend of ours—but what it amounted to is Piers was going to present him with some numbers and sort of appeal to the more emotive side of the American persona and Alex sort of ranted back in his face and I started thinking you know, as much as I like Alex, this is probably not what we need and we need to—like our founding fathers—articulate just where rights come from and where our freedom comes from. And I wanted to do—before we even move into the second amendment…

John:   I did not actually see that interview but I have been reading quite a bit about it and there has been quite a movement to have Piers Morgan deported back to England over that and over other obnoxious and offensive things that he has been saying but what I find interesting is that there has been a lot of opposition raised against deporting him. But the opposition seems to be in England. They’re saying, “We don’t want him back.”

Bill:      Yeah. Yeah. I don’t think that they want him back and of course, whether he stays here or not, as far as I’m concerned he is somewhat insignificant and I think… Here’s the thing, John, that’s kind of exciting to me is what it was—and you probably should watch that if you get a moment—but Alex basically just starts ranting against him and it’s kind of “If you try to take our guns away you’re going to start the next 1776” and here’s what Alex’s basic motif is and here is what I wanted to discuss with you a little bit. His basic motif is “The answer to 1984 is 1776.” In other words, he’s saying, “How we get out of tyranny is to go back to 1776” and I agree with him in some sense but I… I think to end it there is really to miss the point and I think it’s also to lose the debate because we have got a good enough debate. We don’t need to be blowhards or we don’t need to rant against people. We have the intellectual side of this on our side.

So from my standpoint—and I think yours certainly, from Christianity and the Constitution—is that 1776, John, was a byproduct of a certain sort of worldview, right? And that worldview was… If you go after the Constitution, if you go after the Declaration in and of themselves and saying, “This is what we plan to go back as the highest source of ultimacy,” you’re going to miss it because that’s certainly not what John Adams, even Jefferson and Franklin thought or especially James Madison so you’ve got a different kind of a world… I don’t think we go back to 1776. I think we go back to the founders, right? To the colonial period. So what I wanted to talk to you about was from the colonial standpoint up through the Constitutional period, what was the source of law? When these people say, “Where does law come from?” They had a debate, didn’t they? With… You know the kings—George III—said, “Law comes from me,” right? What was their response to that?

John:   Well, this debate goes way back into the 1600s and of course it goes well long before that and we could take it back to the Magna Carte. You can take it back to the old Anglo Saxon legal institutions as they were in England and as they were in Saxony and Germany before that. You can take them back to the Bible. But here is where the issue… I think it’s well framed when we get into the 1600s and we see the steward kings—James and Charles I and then Charles and James II—as they are in conflict with the Puritan controlled Parliament. Now when you read most history textbooks about this, they’ll simply say that the steward kings believed in the divine right of kings and if that’s all there were to it, then I think you and I would be on the side of the steward kings because we believe that governmental authority comes from God. But those Puritans who controlled the Parliament believed that as well. Here is what the difference was.

The difference was lines of authority. The steward kings in the 1600s and the Hanover kings—George I, II and III—in the 1700s, they believed that God is the source of all governmental authority—and we agree so far—but that God delegates that authority directly to the king who in turn delegates some authority to his lesser officers, the ministers, the local officials and so on, the member of the Parliament and the like and they in turn rule over the people. The Puritans who controlled Parliament would agree completely that God is the source of all governmental authority but He doesn’t delegate that authority to the king. He delegates it to the people and they in turn establish these lesser magistrates and the lesser magistrates in turn delegate authority—limited authority—to a king. And so when you look to the American Revolution, it’s really an act of interposition—the legally constituted authorities of the American colonies interposing themselves on behalf of the people they represent against a tyrannical King George. In fact, Alexander Hamilton made the statement after the American War for Independence that “Nothing has really changed. The laws are the same. The local institutions are the same. Property remains in the same hands. The only thing that has changed,” he said “is the seat of government.” And as I say, that is an act of interposition and it’s based on their view that governmental authority comes from God and it doesn’t go directly to the king. It goes through the people.

Bill:      Well, that is a big difference if you stop and think about it. Now every culture we learn has… gets its ideas about law from its ideas of justice. So in other words, every culture has certain concepts of justice and to know what laws we think are just, what things we need to say, “You shouldn’t do that” to, we have to have some view of ultimacy. So the idea that laws are inherently religious is, I think, something missed. If you go to the Alex Jones, Piers Morgan debate, you won’t hear any of that but I think that’s central. It was central to the founders and I think it’s central to our discussion. In other words, how do you take sort of a transcendent God that the founders believed in and remove Him totally from the transaction when a discussion about the second amendment comes up? It would seem to be difficult.

John:   I think it would be very difficult and it was certainly nothing that the founders every intended. You look to the Declaration and of course Jefferson is the primary author of the Declaration—not the only author; Adams and several others had input into the Declaration as well—but when you look to the Declaration—and as I say, it comes from Jefferson—and of all of the leading founding fathers, Jefferson was probably the least orthodox in his religious beliefs. In fact, he stood vastly apart from the rest of the founding fathers on that and yet, I wouldn’t say he was a deist. I would say rather you could probably describe him as a Unitarian. He did not believe in a triune God. He probably did not believe that Jesus is the Son of God in a divine sense or certainly not as the second person of the trinity. But he did believe in a God who is actively involved in human affairs. That would make him Unitarian rather than deist.

But Jefferson in the Declaration says that “Our rights to independence is based upon,” as he calls it “the laws of nature and of nature’s God.” In other words he rests the whole case for independence upon the higher law of nature’s God. And he goes on to say that “The basic truths that this nation is founded upon are number one, that we are all created equal”—he didn’t say “evolved;” he said “created equal” and that’s the only firm basis for equality—and that “We are endowed not by our government with certain negotiable privileges but by our creator with certain unalienable rights” and the only way you can call rights “unalienable” is to recognize that they come from a higher source than government and what can that be but God? And then he says that “To secure these rights governments are instituted among men.” Governments don’t grant rights—they only secure the rights that God has granted. “And these governments,” he says “derive their just powers from the consent of the governed.” So those are the basic principles that Jefferson enshrines in the Declaration and they were principles that every American in the 1700s, all the way from the most radical deist to the strictest Puritan, would readily agree with.

Bill:      And John, I think one of the things that I’d like to point out to people is—as we sort of work this back—you had mentioned earlier in the conversation that these concepts weren’t strictly at the time of the Constitution. One thing that I’d like to bring up and just sort of get your response to… At one point Jefferson was on a committee to come up with the symbol for the new nation and both what he proposed—I thought was quite interesting—him and Franklin sort of were on the same committee and I think maybe he heard this from Franklin. I’m not sure. But his proposed symbol, the verbiage on it was “Rebellion to tyrants is obedience to God,” which is shorthand. So here is this alleged deist using this shorthand from, as far as I’m concerned, has to probably come from Knox and Calvin—and/or both—but this isn’t new stuff. These guys were proposing literally rebellion to tyrants is obedience to God. Amazing.

John:   Well, it’s amazing and it comes out of Puritanism. You’ll hear that slogan among the French Huguenots—that is the French Calvinists. You’ll hear it among the Puritans of England, certainly among Knox and the Scottish Presbyterians. But I’ll tell you one place you will find that slogan today and if you go to New Haven Connecticut… Now New Haven was founded as a Puritan colony and it was founded by what are sometimes referred to as the “Ultra-Puritans” who thought the Massachusetts Bay colony in Plymouth and even the rest of Connecticut wasn’t quite strict enough in its Puritanism. But at any rate, at New Haven… You may recall that in England that you had the civil wars in England in the 1640s between the Puritan Parliament and the Anglican steward kings and their supporters and you may recall that King Charles I was placed on trial by the Parliament for treason.

Bill:      Oh yes.

John:   And anyway, I’m going to lead this back to New Haven in just a moment. You will see how. But anyway, in the trial Charles refuses to give answer to the prosecutors in the Parliament and essentially what Charles is saying is “You don’t have jurisdiction over me and in fact, by taking me as God’s representative to rule the people, by taking me and imprisoning me and putting me on trial for treason, you are committing treason against the people of England” and the Parliament is saying, “No. You, by making war against the Parliament—who are the people’s legal representatives—you have committed treason.” Well anyway, the court judged Charles guilty and had him beheaded. And then ten years later, after the death of Cromwell, ten years later when his son Charles II is restored to the throne, one of the things Charles does is he wants to hunt down those judges who tried and executed his father. Three of them fled to North America and went to the most Ultra-Puritan stronghold they could find at New Haven and they hid in a cave on the bluffs overlooking the bay there at New Haven Connecticut and hid there for close to a year. And if you go visit New Haven and you go up to what they call “Judges Cave” there on top of that bluff, you will see a monument erected to them and on the monument you will see that slogan—“Rebellion to tyrants is obedience to God.”

Bill:      No kidding. I did not know that, John.

John:   Absolutely. I’ve been there.

Bill:      That is really cool. I’ll have to go there and check that out. Well, you’re talking about Charles and of course there has been… One of the things that Charles also did—and I think if my history serves me correctly—I think it was in 1671 he was pushing for a pass-the-game act, which again, he was like his father—someone who liked to centralize power, which is what these Puritans really rebelled against. And so he sort of did a run on the guns amongst his countrymen. In other words, those folks like the judges that you had mentioned, folks that supported Cromwell, folks that supported that cause were still around and he very much wanted to take their guns, right? So here comes these laws not unlike what we’re facing today. Here comes these laws to consolidate power—firepower—in the hands of certainly those nobles that were his friends. So we even see it back in Charles’ time—gun control.

John:   Absolutely. In fact, not only do you see it in Charles’ time but after Charles II, then you have James II and Charles had apparently converted to Catholicism shortly before he died. We know that on his deathbed he refused Anglican Communion and insisted on Catholic communion and several writings—they were not brought to light until after he had died—indicate that he probably really made his conversion several years earlier. But then his brother James II became king and James was clearly Roman Catholic and openly so but when James was forced out of office by what we call the “Glorious Revolution” of 1688 and the Protestants, William and Mary of Orange and the Netherlands were brought to the throne, well, right away then after 1688, they adopt the English Bill of Rights of 1689 and one of the provisions of the English Bill of Rights of 1689 is that all of the subjects of England who are Protestants shall have the right to keep and bear arms. Now you might know there that seems to be denying the right to bear arms to Catholics. There have been debates as to whether it had that effect or not. Some are saying that Catholics already had the right to keep and bear arms under James and this just extends it further to Protestants as well. Others have said that no, the practical effect of this is that instead of Catholics having the right and Protestants not having it, now it’s the other way around. And I’m not sure which is correct.

Bill:      Well, but your point is that you had one of those situations with William and Mary where you had a return to sort of a Magna Carte type perspective where I think even folks were allowed… You had a where everyone ends up being able to have guns and it’s… That was one of those things where they looked back and said, “Yeah, this is our English heritage.” There are these few moments that Piers Morgan probably doesn’t know anything about when he debates with people about what the history of his own nation is all about and you’ve got these periods of time, John, where you’ve got tyranny and then you’ve got these concepts—“Where do rights come from?” “Where does freedom come from?” And these tyrannies are sort of broken by this… I guess we can call it sort of Puritan type thinking. It’s remarkable. I was reading—and maybe you can confirm this—that Henry VIII put bills into effect—laws into effect—that required a father to start training up his male children at the time they were seven years old—seven through seventeen—that they were to be trained with a bow and arrow to begin with in order to defend the realm. So this goes way back, doesn’t it?

John:   Well, it certainly does and it goes way, way before Henry VIII as well. One of the earlier Henrys—and right now I don’t recall which one—had issued what’s called the Assize of Arms, which was a requirement that all freemen posses arms and the knowledge of how to use them—for this—is that at that time we relied—that is England relied—on a volunteer militia. That is the citizenry as a whole—the able bodied, male citizens as the whole—were called the militia and they were called up when the kingdom was being threatened and this was true in early America as well, that we’d call up the militia if there was an Indian attack or if there was an attack by the French across the border—whatever it might be. And anytime the local militia was called up there was a little notation on the bottom of the invitation that said, “BYOG”—bring your own gun. I am speaking figuratively, of course.

But the idea was that citizens were required to posses firearms—and by firearms, of course, going way back to Anglo Saxon times, we’re talking about bows and arrows or swords or things like this—but not only required to posses them but to know how to use them. That way they could function effectively in a militia. We didn’t really rely that much on the standing armies in those days, unless it was a foreign war and in foreign wars many times we found that a standing army, which might be composed of the nobility—the knights and so on—or it might even be composed of mercenaries, either way or both. But many times for a foreign war this was necessary but for defense of the homeland, the volunteer militia was the basis of defense.

Bill:      So you could have at the same time—and then we’ll pick this up in just a little bit because it figures mightily into the discussion about whether this is… the second amendment is one of those things for states or things for individuals—but so from the standpoint of the old days from our English culture—our English history—on, you could have simultaneously a militia as well as an army and they were… The army maybe was part of the overall firepower source but they could exist independently, right?

John:   Exactly. And in fact, many times the army would consist of some of the dregs of society, I’m afraid—that it would consist of condemned criminals who’d… Many times you’d find that English kings and French kings and the like—they were reluctant to take the yeoman farmers because they were productive. We need their productivity on the farms. And so they would take those in the city who didn’t have a way of supporting themselves and for officers, many times officers in the military in those days would be second sons in noble families.

We had what we often call primogeniture. That is the first son would inherit all or most of the property and this was considered necessary to keep an estate together. If you have a large family and a nobleman has to divide his estate evenly among his many sons or maybe even including the daughters, pretty soon that estate is going to be so divided after a few generations that it will cease to be the nobleman’s estate anymore. And so you would give the estate to your eldest son. Then what do you do with your other sons? Well, you could either arrange them to be bishops or officials in the church or you could get them a good commission in the army. And so that was many times the source of the standing army—that the yeoman and the preholders and so on—they would be the basis of the militia. And yes, they would exist side by side.

Bill:      Okay. So we also imported… So we’re importing all these things and we certainly got some Red Coats in that were some of the dregs of society that kind of maybe started a bit of the sparks that happened in this country early on but we also imported… In addition to the people that came here, they brought other ideas with them and one of the things I love about Christianity and the Constitution is one of the things that they brought was Blackstone and I wanted to get your impressions on Blackstone because he is… Blackstone is an English commentator and what was Blackstone’s perspective on the right to bear arms? Again, this is a history lesson for Piers Morgan, so in case he listens to this program, he can understand what it is the real debate is about. So what’s the history that we have from Blackstone as that came over here to sort of fortify the beliefs of the founders and the colonialists?

John:   Well, Blackstone is a defender of the common law and I’d have to look more specifically to see things that Blackstone said specifically about the right to keep and bear arms but I would expect him to be very much in support of the old Anglo Saxon legal concepts, which he says that those are far more important to an understanding of law than understanding Roman law is or understanding Canon law. And so I would expect his understanding in that regard to be very much like that of the members of Parliament and very much like that of those who saw the need for a volunteer militia of the preholders of the state. And you might add too, in regard to Blackstone and his view of law, that Blackstone was very clear that we have a higher law—the law of God—and all human law has to be based upon that.

Blackstone said that you have really three types of law. First of all, you have what he called “reveal law” and that, he said, is found only in the Holy Scriptures. And then he said you have the law of nature and he said that too is dictated by God and is the will of God but we understand that by the power of human reason and as we see it in nature. And he said that both the reveal law and the law of nature are the will and the law of God. He said that if we could be sure of them, they’d be on the same footing but since the reveal law—the scripture—is what God has clearly given to us in black and white and the law of nature is what we, through reason, suppose it to be, if there is any apparent conflict between it, we resolve that conflict in favor of the reveal law. Then he said there is human law and “municipal law” is the term he used for that but that is the attempts of Parliament or councils and the like to take the reveal law and the law of nature and reduce it to statutes and ordinances that would govern civil society. But he said that all human law depends upon the reveal law and the law of nature and no human law is of any validity if contrary to these. So that’s his understanding of law and it’s been said about Blackstone that his commentaries sold more copies in America than they did in England.

Bill:      Sure.

John:   In England you had centuries of common law tradition to rely on but here in America—out here in the wilderness—we had a greater need to get it in writing.

Bill:      Well, I know you had the committees of correspondence using sort of Blackstonian language as they began to circulate just what the problem is and identify a problem and in order to go from Point-A to Point-B you’ve got to push off against something. So they use Blackstone and I think you did a good job indicating Blackstone’s beliefs though I might just say that I’m not sure that my reason and Piers Morgan’s reason and Barack Obama’s reason could be unified in any sense so I may… Blackstone and I may struggle just understanding the value of reason because as I hear Piers Morgan debate this second amendment, his use of reason probably is quite different than maybe your and mine, John.

John:   Well, and that is one of the problems to reason and that’s one of the reasons—pardon the pun—that you see Luther and Blackstone and others saying that if there is any apparent contradiction between the reveal law of scripture and the law of nature, we go with the reveal law of scripture because that’s clear and what we know of the law of nature through reason could be fallible. In fact, Montesquieu and other authors that the framers read a great deal and quoted very extensively—Montesquieu said concerning the law of nature that you have first of all the laws of motion and gravity and physics and chemistry and all these laws and that the universe follows those laws perfectly. But then you have the moral law, which is also part of the law of nature and he said the intelligent world by which arguably, he means us—the intelligent world does not follow the law of nature as infallibly as does the inanimate world—that is planets and things like that. He said because first of all, being finite human beings, our understanding of the law of nature is flawed and second, being fallen people—that is fallen into sin—our inclination is many times to disobey even those part of the law of nature that we do understand.

And so Blackstone, I think, would agree with Montesquieu completely in his language there and would say that it’s for that reason we have to be careful of the way people use reason today. And Luther was also rather skeptical of reason sometimes, although he was really a believer in the use of reason. But Luther… One time he is quoted as having said, “Beware the weather witch, reason”—or some translations give that—“Beware the whore, reason.” He is not saying that reason itself is bad. Rather he is saying that reason is misused by people who want to manipulate it and you go to court and you will see a prosecutor who uses the principles of logic and evidence to try to persuade us that the defendant is guilty and then you will see the defense attorney who uses the same principles of logic and evidence to try to convince us that he is innocent. And so it’s not that reason is wrong. It’s that fallible people use reason.

Bill:      Yeah, and reason and evidence have to always be interpreted and I think even the Bible, from the standpoint on this side, I think even instructs us how to reason. In other words, there are wrong ways to reason biblically. There are references and paradigms that we’re supposed to, as Christians, use when we reason. Oftentimes they’re quite different from those who posit a different ultimacy. So even in our minds, there is still this sense of “What’s the highest value?” and if my reference points are God, I’m going to come to a different conclusion, John, than if someone says, “My reference points are me.”

John:   Very definitely. And again, you look to the Bible and the Bible is not a book that is against reason. In fact, you can see where Jesus uses arguments from reason repeatedly. You can go back to I believe it’s Isaiah—“’Come, let us reason together,’ saith the Lord.” And so I mean definitely reason is a part of scripture. But in fact, John Locke—and there is an enlightenment figure that many of the humanists of this day would like to point to as one of their heroes, although if you read John Locke’s book The Reasonableness of Christianity, I think it’s very difficult to read that book and not conclude that Locke was a professing Christian. But Locke defended the inerrancy of the Bible and he said that “You have propositions that are according to reason, you have propositions that are contrary to reason and then you have propositions that are above reason.” And Locke said, “The Bible contains propositions that are in accord with reason and it contains propositions that are above reason but nothing in the Bible is contrary to reason,” he said.

Bill:      Yeah, and well said. But I think, John here, it really tells you that in this debate—and there is a sort of a vicious second amendment debate—in the debate it’s really important that people understand that if you’re on the Christian side of this, if you’re reasoning the way that we’re sort of taking the position here—the contra-Piers Morgan—is that Piers—and I’m going to defend him for just a second—his reasoning, what he’s using as reference points, paradigms—it’s circular in nature because he only knows certain things and so all evidence as far as he’s concerned gets measured by the same set of reference points that he has. That’s why you have these debates where it sounds like people are just really talking past each other and it’s true because their reference points for evaluating things—how they reason—is totally different.

So I think in the debate, boy, know that your opponent—know that somebody that takes a contrary position—isn’t saying that the values that you have are the highest values. That’s… And that’s the point of contention that I want to get a hold of here because in order to have this debate, we’ve got to get way down below it and get at from I guess a guy like Greg Bahnsen or something would say would be the presuppositional level. What does it take to make the argument cogent? And there are two different things here, John but for two different parties—the more liberal, atheistic side says one thing and I think the second amendment guys that come from this Constitutional perspective that you have are saying something totally different.

John:   Well, I think that’s definitely true. In fact, one of the things that I think was a very central tenant of Christianity is the fall—the fact that Adam and Eve fell into sin and that we have original sin as a result of this and as Luther and Calvin would take it a step further, that we are totally depraved, meaning that there is nothing in us… There is nothing we can do—no decision that we can make—unaided that would be pleasing to God and be deserving of salvation. Believing that, we have one view of what would cause crime, what would cause massacres like that which occurred up there in Connecticut. Now if you don’t hold that view—if you don’t believe that people are sinful—if you believe that people are not responsible for their actions, if you believe that people are simply a product of their heredity and environment, then you’re going to try to look to all sorts of external things to blame for what happened up there in Connecticut and in Denver and in these other mass shootings that we have seen taking place in recent years and recent weeks—even recent months, I should say.

But if you look to the Christian belief that man is depraved, man’s depravity is the root cause of all this. If you don’t believe that, then you’re going to look to maybe bad environment or guns or something else as being the cause. Well, I look to the first murder that took place in history and I don’t see that Cain went out and purchased a Colt 45 automatic pistol. I don’t see that he used a howitzer or an M-14 or an AK-37 or a 47 or anything like this. He may have used a rock or a club but he smote his brother with whatever was available and likewise, when Lamech talks about having killed a young man and says that “Whenever anybody messes with me, I’m going to be avenged on him tenfold” and we see Nimrod and of course Nimrod is described in the King James as a “mighty hunter” but the word “hunter” can actually mean “killer” or “conqueror” and while the Bible doesn’t directly identify Nimrod with the Tower of Babel, Josephus does and Jewish tradition does and so you see a mighty conqueror like Nimrod there. They aren’t using guns. They’re using whatever is available to accomplish their evil designs.

Bill:      And I think even in places like Cambodia where we’ve got… had a lot of killing that went on—a lot of these things—and even maybe in Russia and places like that where the instruments… where millions literally—millions—were killed with some sort of blunt instrument and weren’t necessarily these high power weapons or anything like that. So you’re positing this idea that mankind is sinful and that’s, I’d say, square one, as you’re bringing up—would be the difference because if someone says, “Well, what’s sin?” then you don’t have much of a debate there because they’re always trying to work inside this enclosed system and our appeal, like I think the English civil wars appeal… Remember the placards they carried around—“Appeal to heaven and appeal to God”? Our appeal is always to something outside but what then is the Christian response? Let’s say what do we do? We obviously have to preach the gospel, John, because it’s a hearts and mind thing, as you’re describing—that we need renewed hearts and that’s certainly what the colonialists believe and as you said, articulated all the way up through Madison, especially. What’s our response to all this right now? How then shall we live? What do we do?

John:   Well, you point out we certainly preach the gospel and say that changing the human heart is ultimately the best solution to all of this. But beyond that, there is… I think there is a lot more we do too. We promote biblical principles of government and we show that government is to be limited. We show that self-defense and defense of the people—defending the people—is a function of government. People have a right and a duty to defend themselves and their loved ones when they’re under attack. And we teach the kind of self-restraint that makes this sort of thing possible, makes government work and also makes it possible for people to posses guns as needed in society without fear that they’re going to misuse them.

In fact, a couple of generations ago, it wasn’t at all uncommon for kids to bring guns to school and do some hunting as they came home and maybe bring home supper with them by doing that. And you see that happening. Do you see a kid that…? You don’t see all kinds of shootings take place as a result of this sort of thing. And it’s the mindset. It’s not the guns that are the problem. In fact, you can look to Kennesaw Georgia where a couple of decades ago they put in a law that required every homeowner to possess a gun. And the crime rate in Kennesaw Georgia was already quite low and went down as a result. You look to Morton Grove in Illinois where there is an effective ban on handguns and they have a high crime rate and since that ban went into effect, it’s gone higher. And anyway, I think there is plenty of evidence that the possession of firearms has the effect of deterring an attacker.

Bill:      Especially in this country and I think maybe people would say, “Well, how about in other places?” but there are cultural differences—right—among crime. In other words, certain types of crime exist… America is a more violent place than let’s say England or Japan in non-gun crimes and so America is a little more of still the Wild West compared to some places so I think apples and oranges are… It’s a difficult comparison when liberals tend to bring that up.

John:   Well, but at the same time, you can look to Europe and yes, it is true there is a lot of restriction on firearms possession in Europe and yes, the rate of violent crime is lower in Europe than it is here but one of the lowest crime rates in all of Europe is in Switzerland and Switzerland has a militia concept where every able bodied male citizen is required to possess a firearm and use it and yet Switzerland has one of the lowest crime rates in Europe. You look to Japan and to Asian countries in general and it has something to do with the character of Asian society, I think. But yes, the rate of violent crime is much lower there. However, when you come to America, you look to Asian Americans—particularly Japanese Americans—and you find the rate of violent crime among Japanese Americans is even lower than it is in Japan.

Bill:      That’s really interesting.

John:   And so again, it’s not the availability of firearms.

Bill:      So what do we do now? Here we are and we’ve only got a few more minutes and I wanted to talk about your new book and some other things but what do we do? We’ve got the threat of more legislation. We have the threat of executive order. We have lots of threats that come by. How do we effectively fight against this? In other words, if John and Sam Adams were here, what would they be doing today?

John:   One of the things I think they would certainly remind us is that ultimately the threshold question on all forms of legislation is “Is it authorized by the Constitution? Have we, the people, delegated a Congress the power to legislate in this area and if we have not, then that’s the end of the discussion until the Constitution is amended.” Now when we read through the second amendment, the second amendment does speak about a militia but it goes on to say, “The right of the people to keep and bear arms shall not be infringed.” And one of the things that I think Adams and Washington and Patrick Henry and Jefferson and these founding fathers with a unanimous voice would remind us is that the second amendment does protect an individual right to bear arms.

Now that’s been a debate for a number of years in the 20th century as to whether it protects only an institutional—that is the right of the state to have a militia—or whether it protects the right of an individual to keep and bear arms. And I think it’s very clear that it protects the right of an individual to keep and bear arms. In fact, one of the reasons for the second amendment—James Madison writes in the Federalist Papers that “Let a regular army, fully equal to the resources of the country, be formed and let it be entirely the devotion of the federal government. Still it would not be going too far to say that the state governments with the people on their side would be able to repel the danger.” Then he goes on to talk about the number of the people that could make up a standing army for the nation and compare that to what he says would be a militia amounting to near half a million of citizens “with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affection and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.” That’s James Madison, 1788, Federalist Paper Number 46. Hamilton—and Hamilton is pretty hard to categorize—Hamilton is a wild eyed revolutionary but Hamilton in Federalist Number 29 says, “Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped. This will not only lessen the call for military establishments but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people when there is a large body of citizens [inaudible 0:44:20.1] inferior to them in discipline and in the use of arms who stand ready to defend their rights and those of their fellow citizens.” James Madison, Alexander Hamilton both emphasized that the reason for an armed populous is to protect liberty not only against foreign aggression but also against domestic tyranny.

You know there is an interesting discussion that took place a few years ago and it was… I’m trying to find the exact place here where I’ve got this. But it was a 1960 meeting between US Navy personnel and their Japanese counterparts and what they were discussing were some of the issues of World War II. And one of the American officers present at this meeting asked why the Japanese didn’t ever invade America’s west coast and here is the answer given by a Japanese admiral. He said, “We knew that probably every second home in your country contained firearms. We knew that your country actually had state championships for private citizens shooting military rifles. We were not fools to set foot in such quicksand.” In other words, the idea that we’re hearing today, that the second amendment is obsolete and that individual possession of arms does nothing to help our national defense—well, clearly this Japanese admiral felt otherwise. I can go on to say a couple things about the second amendment and as whether it protects simply an individual right to keep and bear arms or whether it protects only the right of the state to have a National Guard or a militia.

Bill:      Sure, John.

John:   Well, the first thing I would notice is that the Bill of Rights as a whole is protection on the individual rights and if I were to go to a Constitutional law conference and submitted a paper on the freedom of the press and the first amendment and if I were to say that the purpose of the freedom of the press clause in the first amendment is simply to protect the right of the state to publish a state newspaper, I’d be laughed out of there. Well, why give that kind of interpretation to the second amendment? And another thing I would note here is that whenever you see the term “people” as used in the Constitution, that doesn’t mean state. In fact, you can see in the tenth amendment where “people” is used in counter distinction to the term “states.” And then you look to the term “keep and bear arms.” Now this again, I think, implies private ownership. It doesn’t imply that we have our guns all stacked at the local armory and when we report for militia duty we pick them up there. We keep and bear arms. And that to me again, implies private ownership.

So putting all these things together, I think it very clear that the framers intended an individual right to keep and bear arms. In one recent discussion that I saw on the news… One person—I think it was a congressman—was arguing against the individual right to bear arms and he noted that “Well, if I am under attack, the first thing I should do is call 911.” Well, I think he is forgetting that back in the days the second amendment was adopted, you didn’t have 911 to call. People who lived out in the country didn’t really have any way of getting in touch with the police force and even in town—even in cities you didn’t have police forces anywhere near in the sense that we have them today. But in other words, for the actual defense of yourself and your family, you were pretty much on your own then and to some extent that is still true today.

Bill:      I was just going to say, “Good luck in Detroit calling 911 if someone is breaking into your house.” They will get there a long time after you call. And that’s, I think… As you say, we’re… In some ways, John, we’re returning to that sort of thing and… I’d also like to add… I think there are some folks… If you want to do some research for… Obviously I think that your book Christianity and the Constitution is really good for understanding just this founding idea but then if someone wants to—and I suppose you can Google this stuff; I haven’t done it but just I have some books—but if you look at what the guy that was called… the contemporaries for an interpretation of the second amendment. So if you look at folks like St. George Tucker, called the “American Blackstone,” if you look at William Rawle, if you look at Thomas Cooley, these were guys that wrote treatises about the second amendment and about law and without a doubt, to no exception, that people that were alive and were writing a little bit after this period and during this period—there just wasn’t any doubt in their mind, as you said earlier, what the intent was.

The intent is to be a threat to tyranny and that tyranny can come from inside the country as well as outside the country. Tyranny, in a sense, can come from your neighbor who wants your stuff. It can come from our present government. It can come from a lot of different places. My guess is that this government, John—and I know you don’t like to get all wild eyed and crazy—but that we’re using emotional things… And this is a sad thing that happened. Any time that a human life made in God’s image is lost it’s a sad thing. There is no way to say anything other than that. But I think these are emotive times and I think, as Rahm Emanuel said, “I don’t like to waste a crisis.” So I really see sort of cold, calculating politicians really using this tragedy to try to take away something that I feel is God-given and I don’t know where you are on that but that’s… Maybe I’m too cynical but that’s my perspective.

John:   Well, you know, there are some who believe that these various massacres—the one in Colorado, the one in Connecticut—that they may have even been engineered by the states to pave the way for gun control. I am not going to go that far. I always liked the saying that “Never attribute to malice anything that can be adequately flamed by stupidity” and I… But at any rate, they are certainly taking advantage of these tragedies in an attempt to disarm the populous. Now you were talking about what the founders—like St. George Tucker and others—thought. Well, I can just give you a few statements of the founders on this. Patrick Henry, who at the time of the American War for Independence was probably more respected than anybody in all America except for Washington, he said, “The militia, sir, is our ultimate safety. We can have no security without it. The great object is that every man be armed. Everyone who is able may have a gun.” John Adams said, “Arms in the hands of citizens may be used at individual discretion in private self-defense.” Samuel Adams, his cousin—the man we sometimes call the father of the American Revolution—put it this way:  “And that the said Constitution never be construed to infringe the just liberty of the press or the rights of conscience or to prevent the people of the United States who are peaceable citizens from keeping their own arms.” And then Thomas Jefferson—not a delegate to the Constitutional convention or with the Bill of Rights—but the chief framer of the Declaration of Independence—“No free men shall ever be debarred the use of arms.” Anyway, so that seems very clear that that was the intent of the framers.

Bill:      Well John, we’re kind of running out of time. I wanted to talk just in the last couple minutes a little bit about what you’re up to. We’ve got your program that we’ve been working on for a while that by the time our listeners hear this, the crash course on the Constitution will be available and if you like this kind of talk, if you like to be able to articulate what the founders meant, what was implied, original intent and so forth, John did an amazing course that we videotaped in Spokane a while back and that will be available on our website. Check out www.TheFoundersPlan.com [1] and you can see and read all about that. We’ll probably try to put a few clips up there as well. So that’s one thing, as I had mentioned—another great resource.

John:   I might just say that nearly everything that you and I have said in this interview will be on that series.

Bill:      And a lot more. I mean it’s…

John:   Oh yeah. Absolutely. I mean this is on the Constitution as a whole—not just the second amendment but in our discussion of the second amendment, just about everything we’ve talked about here will be on that series.

Bill:      I’m going to send Piers Morgan a copy of it and then we’ll call him up and see if he wants to discuss it with us, John. But you’re also… Right now, as you’re sitting, you’re at the Foundation for Moral Law and the good news, as we were talking about before, that we… before the interview started was that our mutual friend, Judge Roy Moore, was put back at the head of the Supreme Court in Alabama. So do you want to talk a little bit about the Foundation and what you’re doing and what the judge is doing?

John:   Absolutely. I’ve served as… Well, I have been serving as counsel but… In fact, at the first of the year my title now is Senior Counsel and Scholar in Residence with the Foundation for Moral Law. As you say, this was established by Judge Moore. Judge Moore last November—and one of the few bright lights of last November’s election—the people of Alabama decided that Judge Moore should be back in his position as Chief Justice of the Alabama Supreme Court and he will be taking that oath and moving to the Supreme Court again very shortly. Now one of the results of this is that several of the people in our foundation—our executive director, our other legal counsel, our bookkeeper and so on—will be going up to the Supreme Court positions. I’ll be staying here at the foundation. We have… In fact, Judge Moore’s wife, Kayla Moore will become the new president of the foundation and she is a very bright person, very energetic and she will provide new leadership and obviously Judge Moore, even though for ethical reasons he needs to keep some distance but he will remain very interested in what the foundation is doing and… Then we have a really, really energetic and creative new executive director and that is Joshua Pendergrass and I’ll be continuing.

I might say one thing. The foundation… We have a website. It’s called www.MoralLaw.org [2]. Just Google that and you’ll find us. But one of the main things we do is we file friend of the court or amicus briefs in various cases involving religious liberty or the right to life but Constitutional cases in general and in fact, we filed an amicus or friend of the court brief in the Heller case—the Supreme Court case that by a five-four margin recognized an individual right to bear arms—and we filed an amicus brief in the McDonald case—the one that said that that second amendment right to keep and bear arms applies at the state level as well as at the federal level. And right now I’m in the groundwork for some work on a couple of briefs involving some of those that are challenging Obama Care and a couple of cases involving like Proposition 8 in California—the same sex marriage and the like. And so we’re getting involved in a lot of things like this. Just go to our website www.MoralLaw.org [2].

Bill:      Certainly another good resource is www.MoralLaw.org [2], as you say. And John, lastly, you’ve got a new book that you and I have been talking about for the last few years. You just finished up with it right before Christmas and this I’m really excited about because you’re talking about the thing that we discussed today. In other words, what are the predications involved with respect to law? Something’s got to undergird that. It’s not just my opinion against yours. What makes for law? And so you’ve got the Theological Foundations of Law: Volume One and we hope to get that but do you want to talk just a minute or two about what went into that—the thinking that went into that book?

John:   It’s a three-volume work. It consists of six books—two in each volume—about 1,400 pages and the full title is Historical and Theological Foundations of Law and the book begins by going through the laws of ancient societies and all the way from Egypt and Persia and China to the Maya and the Inca and the Aztec and up even to the Cheyenne and to the Iroquois Confederacy and the like and demonstrating that even in these societies that are quite removed from the hearing of the gospel, there were still echoes of Eden, you might say—still some concepts of divine law that they understood. It then goes on to talk about the cornerstone of all law and that is the Hebrew legal system, onto the laws of the Greeks and the Romans with their good points and their many bad points and has a section there on Islamic law, goes onto the development of the common law of England on through the Celtic background, the Anglo Saxon, the Viking background and the like and then on through the Lutheran and Calvinist reformations and their influence and then over to the American colonies and how this concept of higher law—this theological and historical foundation—becomes the root of the American legal system.

Bill:      Well John, how do people get a hold of this book? It sounds like work that we really need to start studying and thinking about as we’re forgetting where law came from and you certainly have done yeoman service there.  How do people get a hold…? We’re going to try to get these books from your publisher but in the meantime, how do folks get their hands on a copy?

John:   Probably the best way is to simply email me and my email is [email protected] [3]. Just email me and I’ll send you all information about it and you can order it directly through me.

Bill:      Okay. Fantastic. John, you know what? I really, really appreciate not only your time today because that’s valuable to us and… but also just all the things that you do. Just so you know, I mean there are people out here in the sticks just really appreciative of your work. So I just want to thank you.

John:   Well, and thank you, Bill, for all you’re doing to get the word out.

Bill:      All right. Thanks again. And thanks to our listeners today. We know your time is valuable as well. Thanks for spending a little bit of it with us.