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Feb 27, 2008

The 2nd Amendment and The Wall St Journal


My recent post on a petition relating to the Second Amendment, drew a response via Sphere It which tracked back to the following opinion piece in the Wall St Journal, which surprised me as I expected this source to go the other way.

Guns and the Constitution
Is the Second Amendment an individual, or collective, right?

In recent decades, the Supreme Court has discovered any number of new rights not in the explicit text of the Constitution. Now it has the opportunity to validate a right that resides in plain sight--"the right of the people to keep and bear arms" in the Second Amendment.

This week, the Supreme Court agreed to hear the case of District of Columbia v. Heller. In March, the Court of Appeals for the D.C. Circuit declared unconstitutional the District's near-total ban on handgun possession. That 2-1 ruling, written by Judge Laurence Silberman, found that when the Second Amendment spoke of the "right of the people," it meant the right of "individuals," and not some "collective right" held only by state governments or the National Guard.

That stirring conclusion was enough to prompt the D.C. government to declare Judge Silberman outside "the mainstream of American jurisprudence" in its petition to the Supreme Court. We've certainly come to an interesting legal place if asserting principles that appear nowhere in the Constitution is considered normal, but it's beyond the pale to interpret the words that are in the Constitution to mean what they say…………..

The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort--an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort………..

………It would seriously harm the Court's credibility if Justice Kennedy and the Court's liberal wing now turned around and declared the right "to keep and bear arms" a dead letter because it didn't comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard's Laurence Tribe has come around to an "individual rights" understanding of the Second Amendment.

By the way, a victory for gun rights in Heller would not ban all gun regulation, any more than the Court's support for the First Amendment bars every restraint on free speech. The Supreme Court has allowed limits on speech inciting violence or disrupting civil order. In the same way, a judgment that the Second Amendment is an individual right could allow reasonable limits on gun use, such as to protect public safety.

Here's hoping the Justices will put aside today's gun control passions and look to the plain language of the Bill of Rights for instruction in this case, as Judge Silberman had the courage to do.


Just as a matter of interest lets have a look at what the 2nd says; "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."

The first part; “A well regulated Militia, being necessary to the security of a free State,” is essentially a preamble, basically nothing more than an introduction. It if anything reinforces what follows, by recognizing the right of the citizen to resist oppression and possess the means of doing so.

The second part is certainly clear in its intent however; “, the right of the people to keep and bear Arms, shall not be infringed.” There can be no argument as to what the draughters intended and that was that the state has no right to interfere with the right of people to keep and bear arms. Its that simple.



3 comments:

  1. I could not agree more mate. An essay by Professor Eugene Volokh of UCLA called "The Commonplace Second Amendment" points to the use of 'justification clauses' in numerous state constitutions drafted in the same era.
    For example he cites the New Hampshire constitution drafted in 1784:

    "In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed"

    He points out that while offering a similar justification clause, the existence of the right is not dependent on whether or not it is still essential to the "security of the life, liberty and estate of the citizen", as today it may well not be. It is simply an explanatory note.

    I thought this was interesting observation.

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  2. Michael SutcliffeMarch 1, 2008 at 9:27 PM

    A well regulated Militia, being necessary to the security of a free State,” is essentially a preamble, basically nothing more than an introduction. It if anything reinforces what follows, by recognizing the right of the citizen to resist oppression and possess the means of doing so.

    I actually think the first part acknowledges a right of the people to form militias. Basically it's going beyond the right of the individual to own firearms, also acknowledging their right to join together and get 'well organised' like an army. And that the state should not stop this from happening.

    It all comes back to the basis of the US constitution. A government that governs with the full consent of the people shouldn't be concerned if the people go as far as forming a militia. If a government cracks down on anything it considers a threat to it, then it probably no longer has the consent of the people.

    I think this quote applies:

    The people of the various provinces are strictly forbidden to have in their possession any swords, bows, spears, firearms or other types of arms. The possession of these elements makes difficult the collection of taxes and dues, and tends to permit uprising. – Toyotomi Hideyoshi, Japanese Shogun, August 29, 1558

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  3. maderak; Great to have you over, that was really interesting and worth reading, and backs up my position that the first part in no way places any limits on the last part.

    Michael; This may well be the case as armed civilians acting together would be a viable ready reaction force in an emergency, especially back then when the vast majority of people had guns and were very competent at the use of them.

    A government that doesn't oppress the people can generally rely on such groups to be on their side, and therefore have nothing to fear from them.

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