Monday, May 7, 2007

Finding the Lost Individual

I remember back when I was in high school. I was pretty involved in debate, not the Lincoln-Douglas type, but rather the Student Congress type. In preparation, I started to read the Constitution so that laws I wrote, and arguments I made, would be constitutional.

During one of the events, I recall chatting with one of the students from another school about one of the bills that was on the agenda for the day. I don't recall the specifics, but it had something to do with gun control. As the other student was discussing it, he mentioned that the 2nd Amendment only applied to militias. Having just read the entire text of the Constitution a few days prior, this struck me as a strange argument.

Perhaps I was just naive, but that just didn't make any sense to me. As I would later learn, a good portion of the people that I discussed this with, well the ones that actually knew enough to intelligently discuss it, took basically the same view, that the 2nd Amendment is a collective right.

The reason that stuck me ass odd then and still strikes me as odd today is simple, I've read the Constitution myself. First, let's take a look at the language of the 2nd Amendment:

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.
While "Militia" is certainly mentioned, to me, that has always just been filler. The important phrase is "the people". That phrase appears in the Constitution a total of 10 times, so I figure it is important to see how it used the other 9 times.

The first occurrence is in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
It is very clear that "the People" as used here means all the individuals that make up the citizenry of the United States.

It next occurs in Article I Section 2:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
This time the phrase means all the individuals that comprise the citizenry of the individual states.

The third time the phrase shows up is Article VII:

that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature,

Here again the phrase refers to the individual citizens of the sundry states.

The fourth occurrence is in the 1st Amendment:

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.
There's certainly no question that "the people" means individuals here. I think I'm starting to notice a pattern.

Of course next comes the 2nd Amendment and after that the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yet again the phrase delineates an individual right. I guess I could go on, but I think you get the point. In every other instance, the phrase "the people" refers to individuals and their individual rights. Why would it mean something different in the 2nd Amendment? The answer, of course, is that it doesn't. The right to bear arms is an individual right and it seems to me the only way to view it otherwise is to be willfully blinded by your own anti-gun beliefs.

Fortunately, there are still some liberal scholars of good faith that put their scholarship ahead of their own bias. One such scholar is Harvard law professor Laurence H. Tribe. He was recently quoted in a NY Times article concerning the effect of liberal scholars in changing the view of the 2nd Amendment as an individual right rather than a collective right:

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”
I would expect that a lot of gun control types would be surprised with the answer they came up with if they were to actually think about the meaning of the 2nd Amendment rather than just knee-jerk dismissing the obvious conclusion.

My hope is that Parker vs DC (PDF) makes its way to the Supreme Court, where I believe its holding of 2nd Amendment as an individual right will be upheld. As we constantly see government power expand and individual rights restricted, it make for a nice change of pace.

4 comments:

Al said...

Come, now! Only people employed by the government, with the relevant training may be secure in their persons, houses, papers and effects! You're being silly!

Al said...

BTW, I heard a guy on the radio one day say that conservatives ignore (or rationalize away) the first half of the amendment, while liberals ignore the second half.

Lee Love said...

For your cartoon: change the caption to Corporatism and switch the gun for a fountain pen. Put the victim on his hands and knees, dog collar around neck, leash in fountain pen's hand, begging for more:

"Yes, as through this world I’ve wandered
I’ve seen lots of funny men;
Some will rob you with a six-gun,
And some with a fountain pen."
--Bob Dylan

Lee in Mpls, MN
A gun toting, meat eating Jeffersonian.

Lee Love said...

ooops! Let me correct myself. Dylan recorded the above, but it is written by the patriot Woody Guthrie.