Constitutional Narratives - War and the Social Contract: The Right to Bear Arms

Abstract

Philosophers of social contract have often emphasized the fact that at the moment when a nation goes into war, the processes of consent have to be more explicit than under ordinary peacetime conditions. Kant, for example, said that all nations ought to be "organized internally" in a way that ensures that at that moment when they go into war, it is not the head of the nation ("for whom, properly speaking, war has no cost") but the people themselves who exercise the "decisive voice." Kant then adds parenthetically, Of course this "presupposes" the notion of a social contract. Under ordinary circumstances-that is, in an era before nuclear weapons- the operation of consent was to some extent automatically guaranteed by the fact that in order to carry the conventional weapons onto the field, individuals collectively had to agree to fight the war. Hobbes acknowledges the operation of consent in the substantiating actions of conventional soldiers when in Behemoth he writes, "If men know not their duty, what is there that can force them to obey the laws. An army, you will say. But what will force the army?" I start by invoking the words of Kant and Hobbes because everyday life continually puts before us the claim that in the emergency of war, when our own survival is at stake, some of the operations of consent have to fall away because of the speed required to respond. Today, I want to emphasize the fact that in contract theory in general, as well as in one very specific social contract, the American Constitution, provisions were made so that consent and the express act of contract become more explicit, not less explicit, at moments of war.