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The Second Amendment and the Living Constitution:

Today also seemed like a good day to reprint my 2002 item on the Second Amendment and the living Constitution:

[Some ask]: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion ... the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from [2002], 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll [from 2002] found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.

tvk:
Eugene, it seems to me that the last quote from Justice Jackson is extremely ambiguous and cuts against the rest of your argument.

"a Bill of Rights was . . . to be applied by the courts. . . . fundamental rights . . . depend on the outcome of no elections" but, apparently, only the dictatorship of Supreme Court Justices. Are you sure this is really the quote you were looking for?
11.20.2007 7:32pm
FantasiaWHT:

Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."


Yet, ironically, we are one of only 3 or 4 states left that make it illegal to carry a concealed firearm. Sigh.
11.20.2007 7:36pm
ReaderY:
I personally have never understood why a states right to maintain and regulate a militia and an individual right to keep and bear arms were regarding as mutually exclusive interpretations of the 2nd Amendment. Given the multiple drafts the amendment underwents, the language could plausibly be a compromise reflecting multiple concerns and supporting multiple rights. I don't understand why evidence that particular framers spoke in favor of one prong necessarily proves they rejected the other.
11.20.2007 8:26pm
The Ace (mail) (www):
Here is a good read on how the 14th Amendment incorporated the first 8 Amendments re: the states:

So, in reporting the Fourteenth Amendment to the Senate on behalf of the Joint Committee on Reconstruction in 1866, Senator Jacob Meritt Howard of Michigan began by detailing the "first section" of that amendment, i.e., the section that "relates to the privileges and immunities of citizens."[50] He explained that the first clause of the amendment (the "first section"), once approved and ratified, would "restrain the power of the States"[51] even as Congress was already restrained (by the Bill of Rights) from abridging

the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures[; etc., through the Eighth Amendment].[52]


In the end, Senator Howard concluded his remarks as follows: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."[53] There was no dissent from this description of the clause.
11.20.2007 8:29pm
Anonymouseducator (mail) (www):
Very, very basic question, apologies for my ignorance: how are "arms" defined? Which sort of bans are unconstitutional?
11.20.2007 8:34pm
Malvolio:
I don't understand why the "collective right" interpretation is taken seriously. Could the First Amendment rights be construed the same way? The Fourth? The Fifth?

"Sure 'you' have the right to remain silent, in that the State of California can remain silent. But you personally are going to admit to this crime or we are going to beat you senseless with a Mag-Lite."

It seems like a grossly obvious post-hoc rationalization and I don't understand how adults can pretend to take it seriously.
11.20.2007 9:00pm
Alex Bensky (mail):
You write that "Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?" It must be understood that "evolving standards" in terms of the "living constitution" idea doesn't mean society's standards or a majority's standards. It means the evolving standards of certain proper-thinking members of society.
11.20.2007 9:01pm
Jim Rhoads (mail):
Great sarcasm, AB.
11.20.2007 9:10pm
FantasiaWHT:
The Ace:

And yet, the court wasn't smart enough to figure that out, refused to accept incorporation through the P&I clause, and had to redo it later through the due process clause. I really wish the court had said "Yep, we screwed up before, it is the P&I clause" instead of making up a substantive DPC.

Alex Bensky:

In other words, 9 elite urban lawyers, right?
11.20.2007 9:13pm
Jake (Guest):
If you take Amar's "view the right through the prism of the 14th amendment" approach, isn't the individual rights interpretation a slam dunk? It's a lot less of a stretch than interpreting the first amendment to forbid the establishment of state churches.

Is there a convincing rebuttal of Amar out there?
11.20.2007 9:52pm
Dave Hardy (mail) (www):
I personally have never understood why a states right to maintain and regulate a militia and an individual right to keep and bear arms were regarding as mutually exclusive interpretations of the 2nd Amendment. Given the multiple drafts the amendment underwents, the language could plausibly be a compromise reflecting multiple concerns and supporting multiple rights. I don't understand why evidence that particular framers spoke in favor of one prong necessarily proves they rejected the other.

That's exactly the theme of my 1985 article in... hmm... think it was the Journal of Law and Politics. There were TWO major sets of concerns that had to be addressed. (1) Classical Republicans such as Geo. Mason wanted a guarantee of the militia as a system; (2) proto-Jeffersonians such as, well, Jefferson, wanted an individual right. Up till 1788, every state constitution or proposal for a federal bill of rights did one or the other, depending upon which group was in control.

Then the Virginia ratifying convention realized ... why not do both? They're not inconsistent, quite the opposite. No reason to stick with one or the other. It wasn't a compromise as such, but a way to satisfy both constituencies. And the VA ratifying proposal was the immediate ancestor of the 2nd Amendment.
11.20.2007 10:42pm
Dave Hardy (mail) (www):
And yet, the court wasn't smart enough to figure that out, refused to accept incorporation through the P&I clause, and had to redo it later through the due process clause.

I don't think it was a matter of not being smart enough -- the relevant 19th century opinions completely ignore the legis. history. Reading them, it's more like "we CAN'T BELIEVE Congress and the people did something like this."

There was one Congressional leader who quipped that in the Supreme Court opinions the framers of the 14th found a number of surprising insights into what their intentions had been.
11.20.2007 10:46pm
Clayton E. Cramer (mail) (www):
ReaderY writes:

I personally have never understood why a states right to maintain and regulate a militia and an individual right to keep and bear arms were regarding as mutually exclusive interpretations of the 2nd Amendment. Given the multiple drafts the amendment underwents, the language could plausibly be a compromise reflecting multiple concerns and supporting multiple rights. I don't understand why evidence that particular framers spoke in favor of one prong necessarily proves they rejected the other.
Several reasons for this:

1. Madison's speech introducing the Bill of Rights is pretty clear that this is to assuage the concerns of those worried about the rights of individuals--not those concerned about the powers of the States.

2. Rep. Tucker's remarks several months later again emphasize that the purpose of the Bill of Rights is to protect the rights of the citizens of the States--not of the States.

3. When later court cases hear arguments about the respective authority of the states and federal government over the militia, such as Houston v. Moore (1820), there is no one on either side of the dispute, and no justices, who believe that the Second Amendment changed the relationships and limitations contained in Art. I, sec. 8, cl. 15 and Art. I, sec. 10.

The notion that the Second Amendment in some way protected the rights of the States to maintain militias more than they already were in the original Constitution is a 20th century idea. There is no statement of that intention in Congressional debates. There is no clear statement of that intention from anyone in the time. To the extent that there are clear statements, they are protections of individual rights.
11.20.2007 11:11pm
GV_:
It seems like a grossly obvious post-hoc rationalization and I don't understand how adults can pretend to take it seriously.

Justice Thomas has argued (well, asserted, really) that the Establishment Clause does not create an individual right. Do you think adults should take Thomas seriously?
11.20.2007 11:37pm
Brian Epps (mail) (www):
What individual right does the Establishment Clause create or protect?
11.20.2007 11:45pm
Frater Plotter:
Brian:

The Establishment Clause protects a right to involvement in government and public life without involvement in an approved religious faith or organization. It is harmonious with the Free Exercise clause, but also with the No Religious Test clause of Article VI.

It probably can't be understood without understanding established religion in Europe, going back to the "cuius regio, eius religio" rule in the Holy Roman Empire and the bloody conflict between Protestant and Catholic royals and nobles in England.

The U.S. Constitution is more radical than the Whiggish idea of religious toleration. Toleration was a big deal once upon a time: the notion that just because the ruler (or ruling party) is Protestant (or Catholic) doesn't mean that they should oppress the Catholics (or Protestants) (and the Jews).

And religious toleration, in turn, is far more radical than the Protestant Reformation. Calvin established a religious tyranny at Geneva, and Luther encouraged the killing of Jews. Neither one was an advocate of religious freedom of any sort: they wanted to create a religious establishment more powerful even than the Catholic Church, but with various doctrinal changes.

Religious toleration was the first degree of individual freedom of religion. It meant that members of minority religions had the freedom to practice them in a society officially and formally dominated by another religion. It is equivalent to the infamous dhimmi status under sharia law, though: "tolerated" groups did not have equal rights. They (especially Jews) were forbidden various professions, could not enter the civil service, and did not have political rights such as the right to vote or serve on juries.

Disestablishment of religion opens public life to those who do not profess the majority religion. That is the individual right it promotes.
11.21.2007 1:32am
American Psikhushka (mail) (www):
As an aside, has anyone noticed the internet headlines about this topic?

"High court to weigh ban on gun ownership."

Note that there is no reference to this only being about the law in DC. If one didn't know what is going on one might assume that this was some kind of nationwide ban.

If I were a suspicious sort I might think this is a subtle attempt to desensitize the public to the idea and make the uninformed think that a nationwide ban is somehow being considered, acceptable, worthy of consideration, worthy of debate, "normal", etc. Think about this in light of how they slipped the Patriot Act by, with many in Congress not even reading it.
11.21.2007 2:33am
Sam Hall (mail):
American Psikhushka said "Think about this in light of how they slipped the Patriot Act by, with many in Congress not even reading it."

Do you really think that most members of Congress read any of the bills they vote on? I don't.
11.21.2007 7:44am
PersonFromPorlock:

Justice Thomas has argued (well, asserted, really) that the Establishment Clause does not create an individual right.

He may be right: the Establishment Clause concerns "an establishment of religion," which is to say an officially sponsored church. It forbids the Congress from making any laws on the subject, either to create a federal church or interfere with state-sponsored ones (there were three at the time).

A good case can be made that the EC still allows a state to establish a church without federal intervention. Of course, such a move would instantly run afoul of the Equal Protection Clause of the Fourteenth Amendment, but that's a different matter.
11.21.2007 7:49am
Bruce Hayden (mail) (www):
Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll [from 2002] found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."
I am always uncomfortable with this sort of interpretation because it essentially says that the side with the biggest advertising budget, or the most journalists pushing its point, on its side, gets to interpret the Constitution.

This might make some sense to me if we limited our basis in government to consent of the governed. But in addition to consent of the governed, we also have to consider whether man, by his very living, is endowed with certain inalienable rights. And I think that overall, our Courts have accepted the later, esp. with their deference to fundamental rights - which have to be closely related by their very nature to Jefferson's inalienable rights.

So, in the end, I am unsatisfied with the idea that fundamental rights can be discovered and lost through public opinion. To me, if it is fundamental now, it will be fundamental tomorrow.
11.21.2007 9:10am
Joel Rosenberg (mail) (www):
The argument in favor of the Collective Rights interpretation really comes down to this: if we accept the notion that the Second Amendment really means something significant, it will lead to undesirable results, therefore it doesn't: it must point to some vestigal, useless 'right.'

Hence the lack of eagerness of the antigun folks, academic and otherwise, to leap onto the notion of taking the Collective Right theory seriously; see Glenn's deadpan piece on the subject.
11.21.2007 9:36am
davod (mail):
The amendments were enacted to ensure the rights of the individual. Why then would the second amendment include something to restrict the rights of the individual (weapons only for the militia).
11.21.2007 10:11am
Aultimer:

I don't understand why the "collective right" interpretation is taken seriously.

Um, because the right is expressed as a dependent clause to stuff about state-ish militias? Look, I'm squarely on the individual right side, but serious people (like judges) clearly have a different good-faith interpretation.

When you lose the ability to see the other side's perspective, you've become a zealot (or TV entertainer-cum-commentator).
11.21.2007 10:43am
PubliusFL:

Um, because the right is expressed as a dependent clause to stuff about state-ish militias?


The "collective right" interpretation would be easier to take seriously if that were true, but it's not. A dependent clause cannot stand alone as a sentence, which is what makes it "dependent" -- it has to be used as part of a greater whole. "The right of the people to keep and bear arms shall not be infringed" is an independent clause -- it stands perfectly well on its own. It is the militia clause that is dependent. You can't just say: "A well-regulated militia being necessary to the security of a free state."
11.21.2007 11:17am
Pluribus (mail):
davod wrote:

The amendments were enacted to ensure the rights of the individual.

But the Constitution doesn't say "the individual," does it? It says "the people." The issue is whether that means "the people" as members of the militia, or the people regardless of their membership in the militia. If the latter, why does the Constitution say: "A well regulated militia, being necessary to the security of a free state"? Is that language just nonsense, or did the framers think it actually meant something?

Also the Tenth Amendment clearly says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." So at least one of the amendments was meant to ensure the rights of the states.

Why then would the second amendment include something to restrict the rights of the individual (weapons only for the militia).

Who is arguing that the amendment itself restricts owning and bearing arms? The argument is that the amendment does not prohibit legislatures from doing that, except in certain circumstances (ensuring that the militia is well regulated). Without legislative action, there would be no restriction at all.

The above does not mean I reject an individual right to bear arms. I remain open to arguments on the issue. It's just that I think it's bad form to misquote or misconstrue the actual constitutional language to make a point.
11.21.2007 11:20am
Pluribus (mail):
PubliusFL wrote:

A dependent clause cannot stand alone as a sentence, which is what makes it "dependent" -- it has to be used as part of a greater whole. "The right of the people to keep and bear arms shall not be infringed" is an independent clause -- it stands perfectly well on its own. It is the militia clause that is dependent. You can't just say: "A well-regulated militia being necessary to the security of a free state."

OK, you call it dependent. But it modifies the independent clause. Is it your argument that the words "A well regulated militia, being necessary to the security of a free state," add nothing at all to the meaning of the amendment? Would its meaning be the same if it simply stated" "The right of the people to keep and bear arms shall not be infringed"? Interpretations that render certain words redundant or meaningless are not favored. Why do you favor such an interpretation in this case? Is it because your argument is, after all, result oriented? Is it your position that it's OK just to cross out certain words in the Constitution when we don't like what they mean?
11.21.2007 11:27am
The Ace (mail) (www):
but serious people (like judges) clearly have a different good-faith interpretation.

Really? How could you possibly know this?
11.21.2007 11:31am
The Ace (mail) (www):
It says "the people." The issue is whether that means "the people" as members of the militia, or the people regardless of their membership in the militia.

Awful, awful reading comprehension and logic.
Which other amendments referring to "the people" don't presume to mean individuals?

Who is arguing that the amendment itself restricts owning and bearing arms?

You're joking right? Is this a serious suggestion that nobody on the political left makes this argument?
11.21.2007 11:34am
marinersalt (mail):
Pluribus:
Also the Tenth Amendment clearly says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." So at least one of the amendments was meant to ensure the rights of the states.


Umm, no.

At least one of the amendments was meant to deny powers to the Federal government.

That's not the same thing.
11.21.2007 11:36am
The Ace (mail) (www):
Um, because the right is expressed as a dependent clause to stuff about state-ish militias?

Utterly false.


[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.


--Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.
11.21.2007 11:40am
The Ace (mail) (www):
More,


[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

[Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

My questions for the usage analysis of this sentence would be,

(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" "only" to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]

[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.

(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.
11.21.2007 11:45am
Aultimer:
Ace - thanks for proving my point about zealotry.

In a list of largetly unadorned rights written in century-old style, one is stated with a justification for the right.

I suggest that people of good faith can read that justification as a necessary limitiation. You say it's "utterly false," that I can't know it to be true, and trot out some 20th century journalism guy to give answers to some moderately technical points of language as though his words proved that my perpetual motion machine won't work.


Rush or somebody is on, so I'll wait patiently for your reply in case you don't have Tivo.
11.21.2007 1:18pm
eddie (mail):

A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.


First, why do textualists, originalists and other conservatives trot out the "living constitution" for this Amendment and yet screech and howl at any other use?

Second, all else aside, please try and state, in plain english, a rational argument concerning the creation of an individual, personal right, based on the actual words of the Second Amendment, printed above.

All of the other arguments (look at the drafts, look at this, that and the other thing) appeal to stuff that is simply not in the Constitution. Where are the exigeses about the 18th century understanding of the actual words?

Finally, let's assume there's an individual right created. Can any one tell me why I should not be able to own a tank or a stinger missile launcher? Where are the restrictions? I only read the word "arms".

Cano arma virumque!
11.21.2007 1:45pm
The Ace (mail) (www):
Ace - thanks for proving my point about zealotry.

I wasn't aware you tried to make one as I certainly had nothing to do with it.


I suggest that people of good faith can read that justification as a necessary limitiation. You say it's "utterly false,"

Uh, no, I said "how can you possibly know this?"

Can you read?


and trot out some 20th century journalism guy


Uh, he's still alive. But anyway, I guess if he were "21st Century" that would be ok, or something?

to give answers to some moderately technical points of language as though

What's funny is that you don't even know the meaning of your own words which were "because the right is expressed as a dependent clause"

You either don't know what "dependent clause" means or can't understand why a professor of journalism would be relevant to that term.

Either way, you know you look like an idiot which is why you throw in silly and meaningless comments about "Rush" whom I never listen to and couldn't even tell you when or where he's on.

thanks for participating.
11.21.2007 1:56pm
The Ace (mail) (www):
please try and state, in plain english, a rational argument concerning the creation of an individual, personal right

You're simply parody. Really why do you people bother?

Can you tell me where a rational "arguement" exists for the creation of an individual right in:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


That should help you understand this terribly uncomplicated issue.
11.21.2007 1:59pm
DangerMouse:
It says "the people." The issue is whether that means "the people" as members of the militia, or the people regardless of their membership in the militia.

Pathetic. In actually, it says the right of the people. Where else is that phrase used?

Pathetic. Let's get out the Constitution and see where "the people" is used in other places. Hmmm...

Amendment 1: ...or the right of the people peaceably to assemble...

People can collectively assemble, but no indivdual has the right to assemble? Does that mean anything? Who cares?! Collective rights, baby!

Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

Another collective right?

Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Where else is the phrase "right of" used?

Amendment 7: ...the right of trial by jury shall be preserved...

A collective right to a jury?

Amendment 15: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude

Amendment 19: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Amendment 24: The right of citizens of the United States to vote...

Amendment 26: The right of citizens of the United States, who are eighteen years of age or older, to vote

A collective right to vote?

The fact is, the "right of the people" or just the phrase "right of" means INDIVUDAL RIGHTS. There is no other context in the entire constitution when the right is collective. The collective rights argument isn't taken seriously because it is not a serious argument. It is complete, total, and absolute, bunk.
11.21.2007 2:13pm
ruralcounsel (mail) (www):
Forget the Constitution for a second - all the arguments have been made, it's just a question of which one they pick.

Look at the practical implications: Try to outlaw firearms in the US now and you instantly create 100,000,000 criminals out of normally law-abiding Americans. Well-armed criminals with a well-developed deeply-entrenched belief that the courts are just flatout wrong. You think Prohibition was a bust, just wait. Nice way to start a civil war! No political party or Supreme Court will ever be the same.

Maybe you city boys and girls don't see it, but there aren't too many quicker ways to get some folks REALLY IRATE out here in flyover country. It's heritage and independence all rolled into one issue. The right to carry arms is one of the last vestiges of when individual Americans were really free from government and the military-industrial-financial-banking-urban social-educational-international-... name your favorite -ism. And yah, maybe it is a powerless vestige in the big picture, but that isn't the personal calculus for most individuals.

If what we buy is YOUR safety for MY firearms ... I'll be happy to let you be less safe. Because if you feel you need to disarm me to feel safe, you aren't the kind of person whose safety I care about.
11.21.2007 2:17pm
The Ace (mail) (www):
Second, all else aside, please try and state, in plain english, a rational argument concerning the creation of an individual, personal right, based on the actual words of the Second Amendment, printed above.

All of the other arguments (look at the drafts, look at this, that and the other thing) appeal to stuff that is simply not in the Constitution. Where are the exigeses about the 18th century understanding of the actual words?

Here you go:


"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
--Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.


And,


The right of the people to keep and bear ... arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country ..."
-- James Madison, I Annals of Congress 434, June 8, 1789


And,


"I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788



I would suspect even you could figure this out.
11.21.2007 2:39pm
Aultimer:

Ace - thanks for proving my point about zealotry.

I wasn't aware you tried to make one as I certainly had nothing to do with it.

It was in the comment you quoted.


and trot out some 20th century journalism guy

Uh, he's still alive. But anyway, I guess if he were "21st Century" that would be ok, or something?


The point is the language is "century-old" and written by politicians, and your expert on it's meaning is a journalist from the 20th century. The idea being that his expertise isn't terribly relevant.


Either way, you know you look like an idiot throw in silly and meaningless comments about "Rush"


That was a reference to more of the original comment you quoted (and I gather, didn't read) where I said "When you lose the ability to see the other side's perspective, you've become a zealot (or TV entertainer-cum-commentator)."
11.21.2007 2:53pm
KeithK (mail):
eddit:

First, why do textualists, originalists and other conservatives trot out the "living constitution" for this Amendment and yet screech and howl at any other use?

I think Eugene is simply saying that even if you accept arguendo a "Living Constitution" approach, a fair application would lead to an individual rights result based on items #1, #2 and #2. There's nothing hypocritical this line of argument.
11.21.2007 3:11pm
Mike Voncannon (mail):
As both a law enforcement officer and handgun carry permit instructor, I've followed the second amendment debate closely for years. Now that the Supreme Court has decided to hear Heller, I believe we are at a defining moment in the gun control debate. Personally I hold to the individual right belief. I feel the constitution means what it says (making me a strict constructionist I suppose). If the court upholds the individual right theory, then the gun control groups will have a fit.

If the court adopts what I've come to call the "Clintonian" (since Bill Clinton was the first person I heard espouse this view) view of the constitution as a "living document," and supports the state theory, then I fear the country is in for some dark days. As I tell my handgun permit classes, if second amendment doesn't mean what it says, how long before the other 10 amendments don't really mean what they say (the sixth amendment has been on shaky ground in wartime going back to Lincoln). I could see a day when the 4th amendment no longer protects from search and seizure, or the fifth no longer protects your right to remain silent (can you say waterboarding).

The quote often attributed to Benjamin Franklin "Those who would trade freedom for security deserve neither" has never been more true. Proponents of the state as all knowing, all providing are strangling our country. I was raised to believe you could go as far hard work and intelligence would take you, and each person was responsible for themselves. Individualism is being (ruthlessly in some cases) suppressed and our country is the worse for it. A clear upholding of Heller might someday be remembered as the turning point when individualism began its comeback.

Happy Thanksgiving
11.21.2007 3:14pm
Bpbatista (mail):
What are the odds that one of the anti-gun justices cites "The Arming of America" in his/her (hopefully dissenting) opinion?
11.21.2007 4:06pm
The Ace (mail) (www):
where I said "When you lose the ability to see the other side's perspective, you've become a zealot

Which is utter crap.
Tell me, do you see the "other side's perspective" when it comes to cannibalism?
Rape? Incest? How about terrorism?

Now, as to the point you were addressing regarding that statement. Is it likely some of those arguing for a "collective right" are acting in good faith? Sure. It is true all of them are? Of course not.
The political left rarely acts "in good faith" which is my main objection to that point. You're assigning motivations to judges who are either deliberately obtuse, are stupid, or simply can't read. That's hardly "good faith."

To think of it another way, if I were here typing 2+2=9.5 over &over and posting utter nonsense to back up my belief, ignored clear evidence I am wrong and facts presented demonstrating such, at what point would you stop believing I'm acting in good faith?

That's where I am with the political left.
11.21.2007 4:08pm
PersonFromPorlock:
Oh, just to throw out an idea: when the functionaries of a government try to disarm their sovereign it's a rebellion, or at least a palace coup.
11.21.2007 6:46pm
PubliusFL:
Pluribus wrote:

OK, you call it dependent. But it modifies the independent clause. Is it your argument that the words "A well regulated militia, being necessary to the security of a free state," add nothing at all to the meaning of the amendment?

No, it is not. My argument is simply that it is incorrect to call the statement "the right of the people to keep and bear arms shall not be infringed" a dependent clause. Grammatically, the first clause of the amendment is the dependent clause.

Why do you favor such an interpretation in this case? Is it because your argument is, after all, result oriented?

Who said I favor such an interpretation? How is my argument result oriented? Did you actually read my comment? I do happen to think that the first clause of the amendment can be useful for understanding the scope of the second clause. But that doesn't make "the right of the people to keep and bear arms shall not be infringed" a dependent clause.
11.21.2007 7:04pm
The Ace (mail) (www):
My argument is simply that it is incorrect to call the statement "the right of the people to keep and bear arms shall not be infringed" a dependent clause. Grammatically, the first clause of the amendment is the dependent clause.

My point to Aultimer as well.
11.21.2007 8:03pm
Smokey:
Of course the Constitution's authors meant individual rights when referring to "the people." People are individuals; if they were writing about States, they would have said so. And speaking of individual rights...

"The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities."

-- Ayn Rand
11.21.2007 8:24pm
Gerald J (mail):
A simple English-lesson diagram of the sentence makes it clear that the both the need for a militia and the personal rights support keeping and bearing arms. Although the sentence structure could be improved IMO, the language itself is one of the best sources of continuity of meaning and is a reason why English is our official language. The meaning of "the people" may best understood from the preamble since it is the collective action of the people which "ordain and establish" the whole document. What is the motive of those who seek to ban the ownership of guns by citizens?
11.23.2007 2:01pm
Pluribus (mail):
The Ace wrote (in this thread):

"Awful, awful reading comprehension and logic. . . ."
"You're joking right?"
"Can you read?"
"You know you look like an idiot. . . ."
"I would suspect even you could figure this out. . . ."
"Which is utter crap. . . ."


You have quite a way with words, Ace. But do you really think you are making points when you denigrate, insult, and belittle those you disagree with? People come here to share views and discuss important issues, not to trade insults. As one whose mind is still open on this interesting question, I'm frankly suspicious of this kind of emotional argumentation, and not much persuaded by it.
11.24.2007 6:48pm