The Second Amendment as a Permit System
A recent administrative denial has drawn attention for an unusual detail. An applicant seeking approval to manufacture a regulated firearm reportedly stated the purpose as the exercise of a constitutional or “God-given” right. The application was rejected on the basis that the explanation was insufficient. The immediate discussion has focused on firearms policy and administrative judgment. The more significant issue is structural. When the exercise of a constitutional right depends on whether a government official considers the citizen’s reason adequate, the character of the right has already been altered.
To understand the significance of such a requirement, the analysis must begin at the level the founding generation used: natural law rather than statute. The American constitutional framework did not begin with the premise that government grants liberty. It began with the opposite assumption—that certain rights exist prior to political authority and that legitimate government is defined by its inability to abridge them.
This principle is explicit in the political philosophy of the founding period. The Declaration of Independence states that individuals are “endowed by their Creator with certain unalienable Rights,” and that governments are instituted to secure those rights, not to originate them. The Constitution was drafted within that intellectual structure. As discussed in the earlier essay The Constitution as a Minimal Limitation on Natural Law, the document was understood as a delegation of limited powers rather than a catalog of permissions. The Bill of Rights was adopted not to create liberty, but to prevent the new federal government from claiming authority over liberties already retained by the people.
The concern that enumeration itself might distort this principle was expressed directly by Alexander Hamilton in Federalist No. 84. Hamilton warned that listing specific rights could create “a colorable pretext” for government to claim authority over rights that were never surrendered. The logic was straightforward. If the Constitution grants only enumerated powers, then any liberty not placed within those powers remains outside federal control. To require justification for the exercise of such liberty is to assume a supervisory authority that the constitutional structure was designed to deny.
Within this framework, the Second Amendment must be understood as recognition of a pre-existing natural right rather than the source of a new one. The natural right at issue is self-preservation. This principle was described by Blackstone—whose Commentaries were the primary legal reference for the founding generation—as the right of having arms for defense, understood as the public recognition of the natural right of resistance and self-preservation. Early American constitutional commentary was even more explicit. St. George Tucker, writing in 1803, described self-defense as “the first law of nature” and characterized the right to keep and bear arms as one of the practical securities of liberty.
The structure of the right therefore follows a clear sequence. Self-preservation is a natural right. The ability to possess and use effective means of defense is an auxiliary right necessary to make that primary right meaningful. The constitutional text does not grant this authority; it limits the government’s ability to interfere with it.
This understanding was reinforced by early American constitutional thought. Justice Chase, in Calder v. Bull (1798), recognized that legislative power itself is constrained by “great first principles” of natural justice that precede positive law. The Court did not suggest that legality alone defines legitimacy. The American system assumed that certain boundaries exist prior to legislation and that government action inconsistent with those principles is suspect even when procedurally authorized.
The founders also understood the broader political dimension of this retained capacity. In Federalist No. 46, Madison contrasted the American system with European governments, noting the “advantage of being armed” as a structural feature of a free society. In Federalist No. 28, Hamilton acknowledged the inherent right of the people to resist unlawful power. These discussions were not policy arguments about weapons. They reflected the assumption that a free population retains the practical means of self-preservation both individually and collectively.
Against this historical background, the significance of a requirement to provide an acceptable reason becomes clearer. Natural rights operate differently from permissions. A natural right does not depend on administrative necessity, policy preference, or institutional approval. It exists because the preservation of life and bodily integrity cannot be made contingent on the judgment of another. Outside lawful disqualification—such as criminal status or demonstrated dangerousness—the burden of justification runs from the government to the citizen, not from the citizen to the government.
When an administrative process asks an applicant to explain why a defensive instrument is being created, the inquiry moves beyond eligibility. The question is no longer whether the individual is legally prohibited. It becomes whether the purpose offered satisfies institutional judgment. Eligibility is objective. Motive is interpretive. Once motive becomes relevant, discretion replaces rule.
This shift reflects a broader pattern of institutional evolution. Where direct prohibition is constitutionally constrained, authority migrates into procedure. The right is not formally denied. Instead, its exercise is conditioned on approval. The citizen is not told that the right does not exist. The citizen is asked to justify why it should be exercised. What appears as administrative routine becomes a mechanism of procedural containment.
The structural concern is not limited to firearms. The manufacture of a lawful object for personal use implicates multiple retained liberties, including property, autonomy, and the ordinary freedom to acquire and shape material resources. Individuals routinely construct, modify, and assemble tools for lawful purposes without state approval. When a particular category of tool requires not only compliance but an acceptable explanation, the regulatory boundary has moved from conduct to intent.
Modern constitutional doctrine has recognized the danger of discretionary systems in analogous contexts. In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court rejected licensing regimes that required citizens to demonstrate a special need before exercising the right to carry. The Court’s concern was structural rather than political. A constitutional right cannot depend on whether an official finds the individual’s reason sufficiently compelling. Once the exercise of a right depends on persuasive justification, the system has crossed from entitlement to permission.
Institutional inversion rarely occurs through explicit repeal. The language of the right remains intact. Public commitment to the right continues to be affirmed. Legitimacy is preserved through process. But operational reality shifts. The system evaluates reasons, filters purposes, and gradually narrows the range of approved exercise without altering the statutory text.
The founding framework anticipated this danger. Rights were assumed. Government authority was the exception and required justification. Arms were understood not as a policy instrument but as one of the ordinary means by which the natural right of self-preservation remained practical rather than symbolic. That understanding did not depend on contemporary regulatory debates. It rested on a simpler principle: the preservation of one’s life cannot be made contingent on another’s approval.
Seen in that light, the significance of a denial based on an “insufficient reason” does not lie in the outcome for a particular applicant. Administrative decisions are fact-specific and reversible. The structural issue is more durable. When a citizen states that the purpose of acquiring a defensive instrument is the exercise of a retained right, and the response is that the reason is inadequate, the burden of justification has been reversed.
The right has not been denied in language. It has been reframed in operation.
This is how constitutional erosion most often occurs. The text remains. Procedure expands. Legitimacy is preserved. But the relationship between citizen and state is quietly altered. The individual no longer exercises a retained right. The individual requests permission to act within it.
At that point the constitutional question is no longer about firearms regulation or administrative practice. The right of self-preservation precedes the Constitution. The capacity to acquire or create the ordinary means necessary for that preservation follows from it. If the exercise of that capacity depends on providing a reason that satisfies official judgment, the structure has changed even if the law has not.
The question is therefore narrow and foundational.
If a natural right requires an acceptable explanation before it may be exercised, is it still being exercised—or merely administered?