March 18, 2008

THE RIGHT VS. THE TEXT:

Going Up for Second: Gun rights@SCOTUS. (John R. Lott Jr., 3/18/08, National Review)

If courts made their decisions based on public opinion, the case that the U.S. Supreme Court will hear today on the District of Columbia’s handgun ban would seem to be easy to decide. The polls and the sheer number of those filing amicus briefs support an individual right to owning guns. Yet, the Justice Department’s brief, while technically also supporting an individual right, has made this debate much more complicated and, for the first time in American history, even compelled a vice president to file his own brief.

A Gallup poll in February found that 73 percent of Americans believe that Second Amendment protects an individual right. On top of that, 305 members of Congress, 31 states, and the Department of Justice all make the same claim. Support is bipartisan. On the other side, only a minority of Democrats — 18 members of congress and attorney generals from five states — signed briefs arguing that it isn’t an individual right.

Even among presidential candidates, Hillary Clinton, John McCain, and Barack Obama all reach the conclusion that there is an individual right to owning guns. Prominent liberal Democratic legal academics such as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached similar conclusions.

Perhaps all this is not surprising given that the Second Amendment is part of the Bill of Rights, and everyplace else in the Constitution that discusses “the right of the individual” the Supreme Court has consistently interpreted this phrase to mean precisely what it seems to mean, that an individual right, not the right of the government, is protected.


While an absolutist reading of any of the Amendments makes no sense as a matter of textual construction, it makes even less as regards the one amendment that is most rigidly qualified and which explicitly incorporates governmental concerns. Tempting as it is for "conservatives" to lop off half the 2nd, so that it reads just "the right of the people to keep and bear Arms, shall not be infringed," that is, of course, preceded by a quite specific rationale for any such right and a qualifier (or two), "A well regulated Militia, being necessary to the security of a free State...."

Gun rights activists can make a coherent argument that since the rest of the Bill of Rights is read so overbroadly and out of context the Second deserves to be also. They can also make the argument, as above, that the Constitution means whatever a majority in a poll and a few academics and pols say it does. These are the sorts of arguments that living constitution folks make all the team, because they don't much care for the actual text. But as a purely political matter you can see why the Right would choose to join the parade rather than stand on principle.

Posted by Orrin Judd at March 18, 2008 11:10 AM
Comments

Yes, OJ, the Right could make the same argument about the Second Amendment that the Living Constitution people make about the rest of the Bill of Rights. The Right can also make a "strict standard" argument about the Government needing a compelling reason to infringe on gun rights.

But is the Right so naive that they think one Supreme Court justice would give an official seal of approval to what can be resonably interpreted as a direct threat to their own power? There are some rights out there that don't need the SCOTUS imprimatur in order to be universally recognized.

Posted by: Brad S at March 18, 2008 12:22 PM

Isn't this a case where "context" matters very, very much? To understand that in 17th century England certain things happened to make ideas and attitudes of an armed citizenry transition from an obligation to turn up when the gov't wanted you to a right to protect yourself and your rights from that same gov't? But one can't even expect judges to be historically literate, alas.

Posted by: b at March 18, 2008 12:48 PM

I am unenlightened (unburdened, perhaps) by a legal education.

The plainest meaning of the 2nd Amendment is that the militia (whatever that means) is to be well-regulated (we can pretty well guess what that means, given the mindset of the Framers and the history of Europe from 1500 to 1789), and that the 'people' (Joe Citizen) should also be able to own weapons (without government infringement). But it also presumes that the Militia enables the security of the State. Neat twist, eh?

Infringement is an interesting word. One might get the idea that any restriction, no matter how slight, is an 'infringement'. In other words, if Francis FitzWilliam of Bleecker St. wanted to own a set of cannon, he may do so. But I don't think that view has ever been primary. Today, of course, weaponry has advanced far beyond the Kentucky rifle.

And the idea of a 'militia' is quite different. If we could return to the 1780s, where everyone in town owned a rifle or two (or five or ten), and acted together as an army, mobilizing and training periodically, and keeping their powder dry, the Left would probably have a collective stroke. Can you see Obama or Henry Waxman or Barbara Boxer or John Conyers going to monthly drills?

The Court went out on a long plank with all its penumbras and unenumerated rights. That burden weighs on this 'case' as much as the language of the Amendment itself.

Posted by: jim hamlen at March 18, 2008 3:57 PM

Protect yourself from the government? Are we in the Koresh compound?

Posted by: oj at March 18, 2008 4:06 PM

oj: You sure do like to feign complete and total ignorance about 16th & 17th century English history lately, don't you?

Posted by: b at March 18, 2008 4:46 PM

Firearm ownership in 16th century England was rather low.

Posted by: oj at March 18, 2008 5:46 PM

Jim: My understanding is that "militia" meant something like "armed citizens who may be called upon in a war or emergency," and not, as many anti-gun types would have it, the National Guard or some other organized, official body.

Posted by: PapayaSF at March 18, 2008 5:55 PM

To begin with, the idea that we value out right to keep and bear arms because we are prepared to duke it out with the black helicopters is unserious. Now, and as at the time of the founding, our guns guarantee the peace against the enemies of civil society even if, and especially if, the government should be unable or unwilling to do so.

But you know, the "collective right" argument is a dead duck. It never was the law--never. The Miller case, which gun-grabbers have been mis-citing for almost seventy years, is actualy non-precedential for either conception.
But it boots little to debate this with someone so misguided as to misconstrue the prefatory language of the Second Amendment as a "qualifier." Do you even know what a qualifier is?

There really is no problem with reasonable regulation of the RKBA. The problem is that we already have ehough--no, more than enough--of such regulation. Records checks, licenses to carry, in most jurisdictions, those sorts of things.

It turns out that such regulations as are consistent with the RKBA are also ineffective against the rotting social scum, who disreard them anyway. Since the reasonable regulations fail to reduce crime, the gun-grabber position is to pretend to totally disarm the people. This, the Second Amendment provides, they may not do.

Posted by: Lou Gots at March 18, 2008 6:05 PM

Actually, the impetus for discarding the more permissive Articles and adopting the more restrictive Constitution was the unofficial armed citizenry.

Posted by: oj at March 18, 2008 6:22 PM

oj: Last week your ignorance was concentrated in the 16th century. This week in the 17th (and 18th, of course).

Posted by: b at March 18, 2008 6:27 PM

Interesting debate here. I'll just note that Akhil Reed Amar has a short but fascinating discussion of this question in his book on the Constitution. He notes that the amendment was intended to cover guns for defense from a potentially overbearing government (and not for the use of, say, hunting clubs).

Also, the changed social situation means that, as folks have noted here, the 2nd Amendment is genuinely hard to apply in the modern era. Citizen militias just don't train and meet regularly anymore. However, it may be reasonable to interpret "militia" as able-bodied males between a certain age range.

Since we all accept some implicit limitations on what kinds of weapons can be owned -- How you'd like your crabby next-door neighbor pointing a rocket-launcher at your kitchen window? -- maybe it's fair to outlaw certain varieties of guns and allow folks to own others. But who decides when you've crossed the line? Outlawing all but one specific brand of gun would obviously be unconstitutional. Also, since this is a Constitutional issue, what would strict scrutiny mean if you applied it to statutes that broadly outlawed whole categories of firearms? Who knows?

It's a toughie.

Posted by: Matt Murphy at March 18, 2008 6:43 PM

Yes, the Amendment protects the citizenry when organized into formal militia--in no small part as a check against an overweaning central government. That is, however, a collective right, not an individual one.

The fact that we have no such militias is a function of the central government in a democracy having turned out to be no threat. Indeed, it is the people armed that has been a threat and the growth of central government tracks rather closely with the arming of the rabble--the explosion of government in the Civil War, the Marshalls service, the FBI during the gangsterism of Prohibition, the Department of Homeland Security after 9-11, etc.

Posted by: oj at March 18, 2008 7:55 PM

b:

We still eagerly await your description of what 16th century peasants believed Christianity meant, besides a few required rituals. For the overwhelming majority of the population of the West, Christianity was quite thoughtless until the Reformation. It remained so in the South of Europe which is why it is so retarded as compared to the Lutheran North and the Anglosphere.

Posted by: oj at March 18, 2008 8:08 PM

OJ:

I don't get what you mean about this being a collective versus an individual right. Presumably the population as a collective can't protect itself unless its individual members are allowed to own guns.

I've heard some legal scholars state that "militia" can be understood as comprising able-bodied males. If so then it's very hard to avoid looking at it as an individual right that secures collective freedom. Indeed, one part of the amendment seems to be collective and the other part individual.

Couldn't you just as easily assume that the presence of guns among the populace is enough of a safeguard (in a democracy) that organized militias are not required? Most of those "abuses" seem comparatively tame.

Posted by: Matt Murphy at March 20, 2008 8:53 PM

No, the point of the militia is to put down the individuals. The Constitution is a reaction to Shay's Rebellion, not to King George.

Posted by: oj at March 21, 2008 12:41 PM
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