I should be packing, but I'd rather be writing. And I should be writing about Turner's frontier thesis, but I'd rather write about....
..the news that the Supreme Court will address the question of whether or not the 2nd amendment gives individuals the right to keep handguns at home for private use. Specifically, they will be making a decision on whether it is constitutional for the District of Columbia to outlaw the private ownership of guns.
This came up last month somewhere, but the 2nd Amendment reads:
"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.
It's clear that the federal government cannot constrain individual states from keeping militias, and hence guns. So the crux of the issue is whether or not individuals have a guaranteed right to own guns.
This case is specifically address the District of Columbia where it has been illegal to own guns since the 1970s. Now, DC is different--it's not a state. And presumably, the prohibition held for that reason.
But the court is willing now to consider it (and it's no coincidence that we have a much more conservative court now that we have in many many years...but that is not the topic I want to address).
Generally, courts have interpreted the 2nd amendment as a collective right rather than an individual one--the right to bear arms is qualified by the first clause in the sentence: "A well-regulated Militia being necessary to the security of a free state".
Does that clause modify the right to bear arms? That's the question. And it's a funny one, because even if it does, most of us can still go to the local sports store and buy a hunting rifle, if not a handgun.
[In fact, by some interpretations, the right is limited to those eligible to be in the militia, which until recently was all able-bodied men from 17 to 45 years of age. So by this odd argument, only men of a certain age and ability have the absolute right to own guns]
As we know, the individual ability to own a gun is controlled, rather than outlawed--types of guns, manners in which we can carry guns, who can own guns, are proscribed, but the ability to own one has not (except in DC) been available to us in some way. But the right of the state to control ownership implies its ability to constrain a right.
Other Constitutional rights are constrained in certain ways--the right to free speech is constrained to a certain extent by whether or not it will harm anyone--we do not, in the classic example, have the right to shout "Fire" in a movie theatre.
Nevertheless, the implications of this decision, which will not come till Spring of 2008, are not clear. Some level of regulation will probably remain. I do not think that background checks or making ownership of guns by convicted felons illegal will end.
Some of you might think that I'm all for banning handguns--they are dangerous, and yes, people with guns kill people. But you know, I'm a qualified textualist. I believe the writers of the Constitution, who were a lot smarter than many in our current administration, meant this as an individual right. In the context of the 1770s and 1780s, state militias were not organized the way they were today. They were made up of men who owned guns. And these men with guns were called upon to oust British imperial rule. Furthermore, by British common law, i.e., non-statutory, non written law, which continued to be followed in the new republic recognized the right of British subjects to possess arms.
The US Constitution grants us inherant rights. Only in a few places does it place limits on those rights. Does not seem to be any reason to limit this right in ways other than how our common sense that tells us that times have changed. And restriction of that right must survive very strict scrutiny.
Yes, private gun ownership is dangerous.
I would argue that my right to free speech, if only I exercise it, is more dangerous.
I want neither constrained.
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4 comments:
Free speech is dangerous to orthodoxy; free guns are dangerous to innocent life. Is there no distinction?
Who regulates the militia?
Is the security of the state to be defended from external dangers? Or is the freedom to be defended from internal dangers?
Is an IED an "arm" in this sense? Which groups in Iraq are militias? Which of them are necessary to the security, or establishment, of a free state?
I no more believe in constitutional inerrancy than I do in papal infallibility; it seems to me that this amendment must be re-contextualized (sorry for the pomo tinge) or discarded. In particular, I am not convinced that handgun ownership protects my freedom; I'm afraid of the government, but I don't think that handguns will help me.
I am afraid I am convinced by the argument that if you interpret some rights in the constitution liberally, then you have to interpret them all that way.
This does not mean that the ownership of guns should not be regulated. The state has a compelling interest to do so.
So do I. In fact, even more so. And I will continue to argue that private guns should be trigger locked, monitored, and permission to own should be regulated. That is my voice issuing though the voice of the state.
L'etat. C'est moi. Or at least it should be.
Free speech is not always harmless and sometimes I think innocents can be hurt. Or are we merely saying free speech without any actions. Where in fact do revolutions begin? Iit is certainly not with going along with the governments rules and not differing opinions? People get very worked up about opinions and speeches of others, many being “inaccurate” in another opposing views estimations and therefore have more of a potential of being more dangerous than a handgun in a gun safe in a home closet. I am not an advocate of limiting free speech but rather merely pointing out that with all our rights a level of responsibility is inherent in a free society. What are we actually talking about here with our free speech in a blog- is the perceived need to take away the right to “bear arms”. I am certain each side of this debate will interpret the Bill of Rights to their political agenda. I for one think if the Bill of Rights was written for individuals rights for all the other rights how can we even think that a state militia was being referred to. I think hinging on one word as opposed to the intent is ridiculous. I therefore believe at the time it was written the writers were in fact saying the governments will not disarm individuals. The same way the freedom of speech was written for the individual and not referring to the States freedom of speech.
Now the limiting of the right to own certain automatic weapons and the waiting periods I am onboard with. Should one person say that hunting should be outlawed for another person? Make a law? I just think taking away ones rights to do something I personally don’t believe in is very dangerous to society. If we want to taking away guns to protect society we should really look at what is causing accidental deaths and deal with that. Hmm let me think, number one cause… oh alcohol related traffic accidents maybe. Well let’s go back and instill prohibition... We do not think that is possible? History will tell us differently. I personally would like to see less challenges of the fundamental rights Americans hold and more challenges in how we solve our problems and take responsibility for our freedoms. The assumption that legal gun owners need to be denied ownership of a gun is insulting.
John
I wonder what we might end up with if we turned the situation around.
Pre-justification: Our forefathers set out to create "a government of the people,
by the people, and for the people". With regard to the military, they assumed that
there would be one, and that it would be directed by the government, which would be
made up of representatives from the body of citizens. The implementation at the time
not withstanding, that is the way things went. What we end up with is a government
which currently vies for power over its people. The various branches are supposed to act in
the interest of the people to ensure that no other branch becomes too powerful.
Sort of a multi-dimensional ball of diametrically opposed forces, all of which are
supposed to be directed, in a general way, by the will of the people. Pretty interesting. The military
and law enforcement agencies are the coercive tools in this equation. They have the
power of terminal force. The law that we are talking about gives coercive force to
the people ONLY through the government. Basically, if a bad guy shows up at your door
and you are not within shouting distance of some form of law enforcement, your only
recourse is to survive the incident and complain about it later. I don't think so.
And what if the bad guy IS the government? Now what do you do? Complain? To who?
Is that unheard of? Unimaginable?
Proposal: Lets imagine that we make a law that says that no entity or agent of any
entity in the government may own or possess a weapon. Concurrently, lets have that law
establish that all able bodied citizens of the country are required to own and possess
one serviceable weapon. Additionally, each citizen must train to operate, maintain, and
make use of that weapon when called upon by the government to address and external threat.
I offer this up as an imaginary proposal only. It is not realistic: what do we do
with tanks, nukes, sidewinders, bouncing bettys, grenades, attack helicopters etc...?
Instead, lets examine the constraints we would need to impose on ourselves. Maybe we
could learn something from that? Maybe, it would point out that when we have
a government "of the people...", that we take this responsibility regardless of the
level of constraint we place upon ourselves and by logical continuation, what we are
doing to ourselves when we say "tell us we can't have them because we might hurt
ourselves".
We are in the habit of assuming that democracy is our protection, and that the government
will protect that democracy. But our government is made up of people, and they are just
as imperfect as the rest of the citizenry. And those people like power. They like to tell
us that they will take care of us, and we are in the habit of believing them. We are in
the habit of believing they do their darnedest to represent us. I think we as individual need to take
on more, not less. A government is only as good as the people we entrust with its
implementation. We the people are the ultimate counterweight to "a people of the government,
by the government, and for the government". And giving up responsibilities/rights does not
improve anything!
Other thoughts: No law says that we must own a gun, no law says we must exercise free
speech. We have the right to free ourselves as individual from taking on these
responsibilities.
I am glad of that(tho I don't agree with the approach).
We also have constraints on the rights that we can exercise when we choose to take on
those responsibilities and consequences when we step outside those constraints.
I am glad of that. Constraint is good, better when self-imposed, but fine otherwise too.
But imposed denial is not constraint, it is something else much more dangerous. For example:
I am convinced we should make it a taxable misdemeanor to eat at McDonald's. It is harmful
to people, and that costs us money. My smoking apparently costs lots of people money and
does harm. So what is the difference between my smoking and their eating tons of trans-fats?
I am willing to bet the numbers of deaths due to heart disease as compared to those
due to hand guns is not even comparable.
(11.5/100,000 for gun deaths, http://www.statemaster.com/graph/cri_mur_wit_fir-death-rate-per-100-000)
(233.8/100,00 for heart disease deaths, http://www.statemaster.com/graph/hea_hea_dis_dea_rat_per_100-death-rate-per-100-000)
Somehow, the smallest number has generated the highest interest.. hmmm wonder how that came
about?
The orthodoxy/innocent life distinction is an interesting one. I am no historian, but my impression
is that orthodoxy has often used coercive power to ensure that the only thing one is free to speak
about is orthodox doctrine (ie some radical religious groups). In contrast, it has been relatively
seldom that those who believe in free speech have
coerced those of orthodox beliefs to stop speaking of their doctrine. Until we get rid of coercive power,
(yeah, right!), I would rather have some implements of that power on both sides of the issue.
When whoever can absolutely guarantee me that no one will use what they have to impose their will on me,
I will give up what I have to prevent that imposition. Until then, I will to the best of my ability
own, maintain, and (hopefully never) use in good conscience, whatever tools I can as a deterrent to that
imposition. It is a matter of balance, the nature of things, and I don't think it is all bad. It is
in many ways good, because it forces us to consider, to think, to care for others as well as ourselves.
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