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Wednesday, June 30, 2010

Thoughts on the Second Amendment

Over at Richard Howe's blog we have a Blog Post on the SCOTUS opinion on the Second Amendment.  I would describe Dick as luke warm.

Then we have a comment via Instapundit from the Reverend Al Sharpton.  I thought the comment from Professor Reynolds (Instapundit) was interesting.  You don't have to go to the link if you don't wish to (bashing of current day Progressives there).  Professor Reynolds has the key 90% of the point, while the linked blog has the quotes and time.

And, in an earlier post, Professor Reynolds notes:  "Third, it really is interesting how much emphasis the majority, and Justice Thomas’s concurrence, put on the racist roots of gun control."  This on the day the last known (former) Klansman still in the US Congress passed away.

But, one wonders about the outcome if the SCOTUS decided that the Second Amendment wasn't about individual rights, what are we left with?
  • Something like Transubstantiation, where we believe it is real, but agree that we don't understand it
  • The realization that the Second Amendment was a terrible mistake and a secret admission that we don't have what it takes to change it
  • A large argument for states rights, at least in the area of the militia, which would invalidate parts of the US Constitution.
Looking at the last first, we have this view:
In trying to determine the purposes of a state right under the Second Amendment, the obvious place to look first is in the writings of those who champion such an interpretation.[13] Unfortunately, (p.1742)they provide little help. The states' right interpretation appears to be employed against the individual right interpretation in much the same fashion as a chain of garlic against a vampire, pulled out and brandished at need but then hastily tossed back into the cellar lest its odor offend.

However, even in this commentary there is some guidance. For example, gun-control activist Dennis Henigan writes that "[t]he purpose of the [Second] Amendment was to affirm the people's right to keep and bear arms as a state militia, against the possibility of the federal government's hostility, or apathy, toward the militia." He describes his interpretation of the Second Amendment as providing "that the Second Amendment guarantees a right of the people to be armed only in service to an organized militia" and argues that James Madison interpreted the Amendment as ensuring
that the Constitution does not strip the states of their militia, while conceding that a strong, armed militia is necessary as a military counterpoint to the power of the regular standing army.... Madison saw the militia as the military instrument of state government, not simply as a collection of unorganized, privately armed citizens. Madison saw the armed citizen as important to liberty to the extent that the citizen was part of a military force organized by state governments, which possesses the people's "confidence and affections" and "to which the people are attached." This is hardly an argument for the right of people to be armed against government per se.
So in Henigan's view, which it seems safe to regard as representative of the "states' rights" camp, the purpose of the Second Amendment is to guarantee the existence of state military forces that can serve as a counterweight to a standing federal army. Thus, it seems fair to say, the scope of any rights enjoyed by the states under the Second Amendment would be determined by the goal of preserving an independent military force not under direct federal control.

The consequences of such a right are likely to be rather radical. In short, if the Second Amendment protects only a state right to maintain an independent military force, it creates no purely individual right to keep and bear arms, exactly as gun-control proponents argue (although it is possible that courts might derive some individual rights by way of inference). However, the consequences go far beyond that particular result. If the Second Amendment creates a right on the part of the states, rather than individuals, then by necessity it works a pro tanto repeal of certain limitations on state military power found in the Constitution proper, renders the National Guard unconstitutional, at least as currently constituted, and creates a power on the part of state legislatures to nullify federal gun-control laws, if such laws are inconsistent with that state's scheme for organizing its militia. Although these results may seem far-fetched, closer examination will reveal that they are inevitable results of a states' right formulation.
The second bullet it just plain embarrassing.  We think the Second Amendment is bad (for reasons other than suppression of former slaves), but we are not willing to go on the record, let alone propose a Constitutional Amendment.  We repealed prohibition.  Why couldn't a big majority repeal the Second Amendment, aside from the fact that such a big majority doesn't exist?

As for the first option, we already have such a belief and it is called Keynesian Economics.  We shouldn't add another theological belief while we are still digesting the one about the best way to get out of a Depression.

All that said, I like the McDonald v Chicago decision.  I agree with Dick Howe about there being legitimate limitations on gun ownership, including not authorizing those who might commit suicide to own a gun or those who have used a gun in a felony.  What about those who persist in driving without a license.

Regards  —  Cliff


Craig H said...

I disagree with the equation of "militia" with "states rights". A militia, in the purest of Colonial terms, was a local civic organization that was even separate from municipal government. E.g., in the case of those mustering to Concord on April 19th, 1775 from the land in Littleton on which my grandparents eventually settled, the militia unit was nominally from the "Boxborough District", and not from any particular town at all.

In this sense, and as I believe, the second amendment's purpose is not defense of the state per se, but, rather, defense of the individual's interest and right to self-determination, organized at the grass roots, and directly among his peers. ("Well regulated" meaning "well trained and drilled", implying that the individual also took on obligations to exercise his right just as the state has the obligation to preserve it for him).

In this context, the right of the individual to own and bear arms cannot be infringed without taking away his right to protect his own liberty, and the SCOTUS obviously got that right.

C R Krieger said...


I basically agree with you.

Just exploring alternatives.

Regards  —  Cliff

the other cliff said...

I have come to the conclusion that Judge Thomas is the only member of the Supremes that is tightly bound to his principles, applying them almost all the time. Perhaps that is because of his very strong Catholic identity.

As for the militia, it was understood then, as now (its in Title 10, United States Code), as being composed of every ablebodied male of a certain age. That being the irregular militia. The regular militia was bound to a specific geographic region and had regular drills. Of course, back then they were required by law to supply their own arms.

ncrossland said...

Excellent analysis Kad and I agree with the second Cliff...and arise each morning thankful that Anita Hill didn't prevail. It is becoming apparent that Thomas is the lone legal scholar on the Court.

At the end of the day (I hate that line..but it fits), it isn't about "militias." It is about the individual's ability to reject an oppressive government.....sort of what we are rapidly beginning to experience today. Can it get worse?? Just wait and see.