Today is the 232nd anniversary of the adoption of the Declaration of Independence. Jefferson said that the fights for individual liberty and collective self-governance would be ongoing ones for now and forever. He was right.
In our clever and ironic age it's too easy to forget that corny or stilted old-fashioned words like freedom, rule of law, and self-governance signify real ideals that, when abandoned in practice, are no longer a laughing matter. At the end of the day I'm not a libertarian, but I'm grateful for every libertarian out there who puts the burden of proof on the government to prove that any and all limitations on our freedom, whether expressive or property, are in fact necessary for the public good. I'm also grateful for those civil libertarian groups who argue for transparency in government and for the strict observance of the rule of law in our judicial system.
There is entirely too much about our practice of governance today, especially in light of the easy going way in which many Americans have been willing trade in their liberties for the illusion of greater security since 9/11, that would distress Thomas Jefferson today.
I'm also sickened by the abuse of language throughout our culture as a way of masking reality. Revenue enhancements. Enemy combatants. Production holidays. Patriot Act. In general I tend to be friendly toward gun control measures, but the truth is I was pleased that the Supreme Court recently ruled in favor of a plain reading of the 2nd Amendment. Whether or not one likes the 2nd Amendment, we should all at least be willing to acknowledge that it's there and its words are not empty. And if we believe that the U.S. Constitution is the highest land of the law, all of its measures must be respected. If we don't like a portion of it, we can amend it.
I vowed to myself when I started this blog to shy away from all matters political. But I think on Independence Day I give myself this one dispensation.
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3 comments:
Very nice post (and I was referred here by our mutual friend, Steven.)
On the 2d Amendment, do those non-empty words not also include the opening clause about the "well regulated militia"?
I am neither a constitutional lawyer nor a scholar of the Convention, but it sure has always read to me as if the right to keep and bear arms is nothing but a means of facilitating the militia that is necessary for a free state, with the proviso that said militia must be "well regulated."
alright, mb. you're the one who opened this door. don't think you can placate the masses with photos of clouds and bumblebees. let's hear your answer.
MSS--
Okay, "justcurious" has shamed me into responding to your note.
First of all, thanks for the kind words about the post. As I said therein, I'm a proponent of some kinds of gun control. Just to state that up front.
I confess that the Constitution is vague in two respects in the Amendment and that renders, despite what I said in the post, a "plain reading" of the text less plain than I had stated. (So, yes, your question is a good one.)
The two ambiguities as I see them, and no I'm not a constitutional scholar lawyer, are these:
1. Does the Amendment refer to both individual and collective rights?
And
2. Can states regulate the individual right to bear arms?
Here's my best (if brief and incomplete and, truth be told, pretty ignorant) stab at it. In fact, I don’t really fully answer the questions above, though my answers can be easily enough inferred. To the first question, the answer is “yes.” To the second question, my answer is “yes, to a degree.”
Here are some thoughts on the amendment.
1. The distinction between collective and individual rights at the time of the state conventions was less meaningful than it is today. Citizen militias at the time typically necessitated that the citizens who composed them bring their own weapons to the fight. Therefore to guarantee a militia at the time necessitated protecting individual rights.
2. Bearing arms strikes me as a phrase aimed more at individuals. I don't think that armies "bear arms."
3. The amendment links militias with the protection of a "free state." The key word here is "free," which means self-governing and protective of the people's rights. The concern at the time the amendment was passed was the danger of standing armies. Not of foreign states but of their own nation. In other words, the amendment was designed not simply, or even principally, to protect the citizenry from outside attacks but also for protection against internal tyranny.
If so, then the choices seem to be these. If "the people" refers only to states, and the bearing of arms means only that a state may arm itself, then the purpose of the amendment is defeated. Construing it this way merely shifts the threat of an abusive army from the federal to the state level. More than that, it creates a new threat to interstate unity, as each state will in effect have its own army.
3. If "the people" merely means "states," then it’s curious that that language was not used. After all, the word "state" was used once already in the state. Why not just used it again to clarify? In other words, if the amendment refers only to a collective right, then it seems to me it should read: "A well regulated Militia, being necessary to the security of a free State, the right of INDIVIDUAL STATES to keep and bear Arms, shall not be infringed." But that doesn't read sensibly because it suggests that states can have their own armies. But that prospect was entirely out of question for the Framers, who sought to reduce the possibility of interstate conflict. Why have armies if only the national government could declare war?
4. In general when the meaning or existence of a constitutional right is a subject of dispute, it seems to me that the default reading of the Constitution should be in favor of an expansive rather than a restrictive view of that disputed right. Or at least in most cases. Because the right in question here does seem to be qualified by the term "well-regulated," I do believe that those words generate a warrant for "some" restriction on the right. But wholesale prohibition or confiscation of classes of weapons that can reasonably seen by reasonable people as part of self-defense strike me as going too far.
5. The generation that authored the Constitution and Bill of Rights was the same generation, more or less, that had just engaged in revolution. The D. of I. says, "Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." While these words have little effective meaning for us today (let’s just be honest here), they were lived out by the people who framed the Constitution. While few political documents including the Constitution build a "self-destruct" provision into the body of the document, many anti-federalists and a few federalists worried that the Constitution, which was designed to give effect to the theory of the D. of I., was utterly void of any language that suggests the people's natural right to go beyond amending the Constitution to protect themselves from a corrupt one. The 2nd Amendment is the only part of the Constitution that even hints this view.
6. Though I'm not a student of the state conventions that ratified the 2nd amendment, it's my understanding that many of the political leaders of the day simply understood it to be an individual right as well as a collective right.
7. When "the people" is used in the other parts of the Constitution, it always refers to individuals. For example, the "people" are given the right to peaceably assemble. Similarly, "the people" is explicitly distinguished from "the states" or "state legislatures" in the 10th Amendment as well as the 17th Amendment.
I don't know whether the 2nd Amendment makes sense, or whether it has much relevance today. And I think it's only sensible, and consistent with a fair reading of the 2nd Amendment, that weapon possession can be "well-regulated." But...does it refer only to state-sponsored possessions of arms? I don't thinks so. For good or for bad.
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