The Second Amendment As An Individual Right
By Pejman Yousefzadeh Posted in Law | The Second Amendment — Comments (25) / Email this page » / Leave a comment »
Mike Cox, the attorney general for the state of Michigan, makes the argument on behalf of the proposition that the Second Amendment protects an individual right to bear arms. Really, the number and cogency of arguments in favor of this proposition are overwhelming in nature and substance. How the Supreme Court could possibly find otherwise is beyond me.
Maybe by writing that, I am setting myself up for a disappointment. I certainly hope not, but I am confident that the individual rights proponents have the better of this argument.
The only thing that gives me pause, of course, is that I have absolutely no idea what Justice Kennedy might think. Will he call upon the residue of his originalist jurisprudence to agree with my position or will he simply cite some international law case to find otherwise? The betting in Vegas ought to be hot and heavy regarding this issue.
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Your selected quote from the AG and analysis is an argument made some 220 years after the fact (BoR), and shows how time affects the reasoning. While Mr. Cox's reasoning seemes right on target for a 21st century audience, imagine how utterly absurd these reasons would seem to an 18th century man. In his world, an unarmed man was food. A firearm was as indispensible as a shovel or horse to most everyone of the day.
I see the hunting argument made repeatedly in support of the 2A and the Founders intent. I don't believe they even considered this line of reasoning any more that we would regulate the use of a PC. Everything I have read on the (some contemporaneous and more as reflection) leaves me with the understanding that the right to bear arms is a Political Right.
The Founders had just finished a brutal and costly war of independence and were filled with zeal that NO government should ever hold such power over its citizens again (weak Federal, strong State concept). It was thier desire to guarantee that the government should fear the people, not the other way around. An armed populace is the insurance of last resort against a power grabbing, rights abbridging, elitist ruling class. Were they alive to day, they would be mortified that an appointed court would even consider judgement on this subject. This is what they were intending to prevent! You points and analysis make good sense to someone today, but when viewed in the context of the Founders, things would be quite different.
Overall, this situation just illustrates how far we have strayed from the vision of the Founders. Breathing penumbras will do that to a document.
An unarmed man is a subject.
It's also fitting that as this topic reaches the national consciousness through the Supreme Court that the most recent Cabela's outdoor superstore has opened in East Hartford, Connecticut, on October 16.
I plan on making several trips there this holdiay season and I'm thrilled that Cabela's is extending its chain here in the Northeast.
Here's some background on the one that opened in Arizona last year:
"What better way to spend time with good friends than to enjoy the outdoors?" said Todd, whose group of six passed the time munching on boloney sandwiches, watching movies on a portable DVD player and playing Yahtzee. "And who offers a better outdoors activity than Cabela's?
...
Cabela's opening served as a "boy's day" for the family of Daniel Young. The Queen Creek resident brought his three sons, three nephews and a brother-in-law and left his daughter at home.Just 40 minutes after the doors swung open, Young had already made his first purchase: a Henry's .44 Magnum lever-action rifle.
"I knew they carried it in the catalog, so I made a beeline right here and picked it up," said Young, 47, a deer hunter who has been ordering from Cabela's catalog for the past two decades. "It's pretty neat to see this store built in our neck of the woods."
The store not only appeals to hunters, anglers and campers. Families said they appreciate Cabela's interactive games, restaurant, 40,000-square-foot aquarium, and collection of more than 400 stuffed animals.
I'm glad to see that Cabela's has figured out that there are a lot of people in the Northeast who enjoy shopping at a quality outfitter, who sometimes take their sons on "boy's days" and leave their daughters at home (and that's OK!) and that doesn't apologize for the fact that people can buy guns there. What a notion here in the great, liberal Northeast! It might cause a Revolution...of people being normal again!
I've got about 3,000 rounds through my RWS since this time last year and my marksmanship skills are almost what they were when I was 18. What fun! Mine's the fourth review on this page, almost a year old, and the RWS has proven to be as much fun and as well-made as I said it was then.
They come down to the following two points:
* The meaning of the phrase "the People", which can either be collective or individual.
* The meaning of "arms", which can either mean "some weapons" or "any weapons" -- i.e., does congress have the right to specify which weapons "the People" can bear, so long as it does not restrict all weapons.
Depending on your preferences, you can reasonably interpret this as protecting the right of individuals to own WMDs, or as only protecting the rights of organized militias to own sharpened sticks.
Current interpretation seems to be individuals can have "some weapons" with lots of back and forth between the political parties on where to draw the line between sharpened sticks and nuclear warheads (and both political parties seem to place the line somewhere around automatic weapons being disallowed, semiautomatic allowed)
Because of the vague terms in the 2nd Amendment, it is going to be interpreted by the courts to mean very different things as the political situation changes. If you want to nail down the meaning, you would need to pass a new amendment which doesn't have so much wiggle room.
The very logical side of me gets annoyed with the NRA claims that they defend the 2nd Amendment -- they only defend a specific interpretation of the 2nd Amendment.
My favorite interpretation is that the 2nd Amendment was never really ratified at all, because the versions passed by congress and the states were not the same, because of a key discrepancy in punctuation and capitalization -- it's simply not the same amendment.
Here's the version passed by the House and Senate:
"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."
And, here's the version ratified by the states:
"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."
This no-2nd Amendment interpretation, while not holding any political weight, is actually the strictest possible interpretation of the amendment process. The congress and the states didn't ratify the same amendment, they ratified equivalent amendments, but the constitution has no provision for accepting that scenario.
Anyway, the main point is: the interpretation of the 2nd Amendment is going to change with the political landscape (living, breathing document and all that, which the founding fathers brought on by using vague language), and if you don't like that, you need to push a new amendment that isn't as open to different interpretations.
And, um, try not to create a constitutional right for my neighbor down the block to build a nuclear weapon while you're doing this. He's one of those mildly incompetent handyman types and would lay waste to the city.
Whether the founding fathers meant for the meaning of much of the constitution to be open to interpretation is an open question -- clearly, some did and some did not.
But, a lot of the language in it was compromise language that resulted in deferring issues to the Supreme Court, for better or worse.
the Founders NEVER envisioned the Supreme Court having the power of Judicial Review. They self-created that power. And if Congress and a President wanted to stop it, they completely could pass a law and there is NOTHING the Court could do about it. Why? Because Congress could cut their funding and the President could say he wouldn't enforce their rulings.
It's quite simple, Congress actually has the express constitutional power to determine what the Courts can hear or not. I think it's time that the other two branches start showing the Court that they aren't the "unchecked" branch of government they seem to think they are.
The text certainly is imprecise and open to interpretation, but the words don't change meaning over time. What was ratified, was ratified, and that's that.
over time. That is one of the problems in construing old documents. I beieve that there is a scholastic discipline in either History or English where the changes in meaning of words are traced. One of my Law professors practiced this discipline and often would point out the different meanings of words in different eras. I wish that I could remember some specific examples but those classes were forty years ago.
to find out what the words meant at the time they were written. That will tell us what was meant by those that wrote them.
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Why is it that "some" (read: Liberals) seem to like to make things overly vague like "general welfare" and then limit phrases like "people" and "arms." It makes NO SENSE!
However, I'd like to know what City you live in. Perhaps it'd be worth while to see it go up... all those people gone, it could be one step closer to solving our AGW problem.
I'd say it's a matter of which words are treated broadly and narrowly, rather than a general tendency to treat words broadly or narrowly. People pick and choose based on their world view.
It's a very broadly written document, and much shorter than nearly every constitution written since.
The only folks who want to treat every word in the constitution narrowly are the Ron Paul folks, and they're also insane. Correlation does not imply causation, however, so I wouldn't care to guess which is the cause and which is the effect.
Quite simply just look at common practice when the laws were passed.
Bingo its there. Hence the Individual right to keep and bear arms.
And yes people do pick and choose, but that doesn't make them correct.
Your wrong about the RP folks. They too have a particular slant where they change bits and pieces to suit themselves.
______________________________
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
Depending on your preferences, you can reasonably interpret this as protecting the right of individuals to own WMDs, or as only protecting the rights of organized militias to own sharpened sticks.
In practice the differences between the two points of view are very stark and are not a matter of "preference" at all -- they're the legal difference between allowing individual citizens to own weapons and not allowing them to.
In fact, the "living, breathing" interpretation of the 2nd Amendment implies the absence of choice in the matter for the vast majority of Americans who currently own a gun or who want to see their right to do so in the future preserved.
I can very easily imagine a Massachusetts State Legislature responding to a ruling that asserts gun ownership as a collective right by immediately calling for a confiscation of privately owned firearms throughout the state. In the case of people who will see their guns taken from them, it won't be a matter of "preference" -- it would be a matter of law. Massachusetts already has some of the toughest and most draconian restrictions on gun ownership in the nation, and I can say that as someone who jumped through the hoops.
In this state, firearms are preemptively confiscated whenever someone takes out a domestic restraining order. It doesn't matter whether or not the individual owning the guns has ever committed a crime: they can have a perfect criminal record, but they *must* by law surrender their guns and their FIC. They are preemptively guilty until the term of the restraining order lapses, and violations of that law are a *felony*.
Also in Massachusetts, you can and will be prevented from possessing a firearm legally if you have a misdemeanor conviction from even ten years past that *could have* received a jail sentence of two years or more. That means that if you were charged with a minor disturbing the peace violation and received a $100 fine but the maximum penalty for that violation was 2 years in jail, you can *never* own a gun in the Commonwealth.
Never.
What "preference" is there involved in the kind of interpretation you're talking about?
Liberals love to trot out the idea that somehow large numbers of people are moving around the country selling guns to gangs, and that's why everyone's right to own a gun must be curtailed.
In Massachusetts if you possess an FIC (which you get at your local police department, through an application to the Chief of Police, who then does a computerized FBI background check on you in Quantico, Virginia and also through the State) and you simply decide to *move* to another jurisdiction, you are legally required to submit *written letters* to both the Chief of Police of your current town and the one you are moving to. Violations of that law are *also* a felony.
So if you sell your house and move to the town 10 miles away and forget to send the letters, you are de facto a felon and you can and will go to jail.
That's the "living, breathing" Constitution as applied in Massachusetts by the most overwhelmingly Democrat legislature in the country. There is no such thing as "preference" involved...the statutes are as thick as my wrist.
The words "right of the people" cannot be a collective right. That phrase, or variations of it, in the Constitution always refers to individual rights. If you can show differently, I would like to see it.
I'd say that the phrase "the people" in the second amendment means the same "the people" as in the other amendments & the rest of the constitution. If one looks at it this way, "the people" mean the individual citizens.
As far as what "arms" means, one may look to the federalist papers for insight. In these, one may see the founders had in mind the ability for the individual citizen to be armed in the same fashion as the foot-soldier.
I'm not a big fan of original intent. I like to look at the words would reasonably be understood to mean to the people at large who ratified it. Different framers had different intents surely, of the language that came out of the processes that created the Constitution and the amendments, but the effects of the text when it got to the public had to have a definite meaning to people.
So the Federalist is useful in that it gives a publicly argued interpretation, but if there are other interpretations specifically of the 2nd amendment that have been given at the time of ratification, then that'd be interesting to look at.
The Founders' Constitution
Amendment II
"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."
Pennsylvania Constitution of 1776, Declaration of Rights, art. 13
Thorpe 5:3083
Volume 5, Amendment II, Document 5
XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
William Rawle, A View of the Constitution of the United States 125--26 1829 (2d ed.)
Volume 5, Amendment II, Document 9
...The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both...
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“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan
The only thing that gives me pause, of course, is that I have absolutely no idea what Justice Kennedy might think.
Maybe he'll decide that guns are how some people define their own concept of existence, of meaning, of the universe, and of the mystery of human life. Then he could find a new use for the "undue burden" standard of review.
What you say is both a funny criticism of Kennedy, and a sobering reminder of the type of mind that will likely decide every contentious case as long as the Court retains its current membership.
I can't bring myself to be optimistic about Kennedy at all.
........of this eternal debate. Parsing the "meaning" of words while ignoring the intent of them is more a recent phenom than an historic one. For 200+ years, those "archaic minds" that veritably built this nation, had no problem understanding and accepting the "intent" behind the wording of the 2nd Amendemnt. It has only been during perhaps the last 50 or so years that the disection of "meaning" has taken the floor in the debate, brought on by those who are infinately more wise and intellectual than their predcessors. That approach is not only applied to the 2nd Amendemnt but to the entire documents, both the Constitution and the Bill of Rights. Would be great if one could apply such wiggle room to all other "contracts" that identify the roles of the affected parties to the contract. Would basically make null and void any and all "legal and binding" contracts via this approach since no one knows for sure just what the definition of "is" is. Would be really great to apply the "living, breathing document" description to all such "contracts". I can hardly wait. Provides a whole new avenue for social interaction.
...I assume the inference of "what the definition of "is" is" was in reference to Slick Willy's explanitation in his deposition before the Grand Jury about Monica. Let us not forget these things when November 2008 comes around.
In reference to all the comments about gun control, a law that requires us to give up our guns makes it more dangerous for law abiding citizens living in this country and loss of many outdoor recreational activities such as hunting, shooting competions, and billions of dollars generated by the sport. Only criminals a insane use guns illegally and all the laws that have been passed to control them doesn't seem to be a deterent because the enforcement and punishment is non-existent or loosely applied.
Common Sense
most in the know, know that the evidence says it is an individual right. Usually, when the SC does not want to face the evidence, they just refuse the case. The fact that they took this case is a good sign in my opinion.
We must remember that many state Constitutions already have have amendments that say it is an individual right. I don't think the SC ruling could overturn them, but it could overturn some insidious bans in NY, DC, and IL.
I think even many Repubs do not fully realize the words of the Second Amendment. The words say the right "shall not be infringed". To me, that says almost all gun laws are unconstitutional, well, actually, all of them. Too bad the SC is not looking at THAT part of the wording, but only the part about militias.
Molon Labe!
At least there are some honest State's Attorneys General who can still understand the meaning of the 2nd Amendment and see how it exists as an individual right just as much as the rest of the Bill of Rights.
What I refer to as the backdoor argument against the individual right to keep and bear arms arises in this paragraph:
Let's parse this carefully and see how it applies to modern day America, and whether the 2nd Amendment as an Individual right is an anachronism on those terms. Most of America is still rural, although it is certainly not frontier in most senses of the word. Although at the time the Constitution was drafted something like 90% of Americans were farmers, the same isn't true today, however, if you look at the numbers you find that some 80 million Americans keep and bear arms quite lawfully, and in the vastly overwhelming majority of cases, peacefully and with vanishingly small accident rates.
I very seriously doubt that anyone could even make a credible public health case for further restricting gun ownership before they decided to outlaw something like aspirin, or NSAIDs, not to mention ball-point pens. Concomitant with (although not necessarily the cause of) the decrease in violent crime in America, we have in the past 20 years seen a significant and consistent increase in the number of privately-owned firearms, and the number of households in which they reside. The Clinton Assault Weapons ban lapsed, and we shouldn't be surprised that the streets didn't run red: it was a bad law, a political law first and foremost, that had very little to do with what Americans rely on their government to do.
I could have told people as long ago as 1988 that they wouldn't.
I hope the Justices decide arightly. The American people have proven that they don't need more creative linguistic interpretation and postmodern problematizing when it comes to this very simple, but nevertheless essential bulwark of their liberty.