2A Editorial in WSJ, November 24

[Legionnaire]

This from today's WSJ Online:

Guns and the Constitution
Is the Second Amendment an individual, or collective, right?

Saturday, November 24, 2007 12:01 a.m.

In recent decades, the Supreme Court has discovered any number of new rights not in the explicit text of the Constitution. Now it has the opportunity to validate a right that resides in plain sight--"the right of the people to keep and bear arms" in the Second Amendment.

This week, the Supreme Court agreed to hear the case of District of Columbia v. Heller. In March, the Court of Appeals for the D.C. Circuit declared unconstitutional the District's near-total ban on handgun possession. That 2-1 ruling, written by Judge Laurence Silberman, found that when the Second Amendment spoke of the "right of the people," it meant the right of "individuals," and not some "collective right" held only by state governments or the National Guard.

That stirring conclusion was enough to prompt the D.C. government to declare Judge Silberman outside "the mainstream of American jurisprudence" in its petition to the Supreme Court. We've certainly come to an interesting legal place if asserting principles that appear nowhere in the Constitution is considered normal, but it's beyond the pale to interpret the words that are in the Constitution to mean what they say.

However, it is true that, despite our vitriolic policy fights over gun control, the Supreme Court has rarely ruled on the Second Amendment. The Court last spoke in detail in 1939, in U.S. v. Miller, involving a bootlegger who claimed the right to transport an unregistered sawed-off shotgun across state lines. That opinion was sufficiently complicated that both sides now claim it as a precedent.

The dispute arises from the first four words of the Second Amendment, the full text of which 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." If the first two clauses were omitted, there would be no room for ambiguity. But part of the legal controversy has centered around what a "well regulated militia" means.

Judge Silberman's opinion argued, with convincing historical evidence, that the "militia" the Framers had in mind was not the National Guard of the present, but referred to all able-bodied male citizens who might be called upon to defend their country. The notion that the average American urbanite might today go to his gun locker, grab his rifle and sidearm and rush, Minuteman-like, to his nation's defense might seem quaint. But at stake is whether the "militia" of the Second Amendment is some small, discreet group of people acting under government control, or all of us.

The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort--an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort.

As a practical matter on the Court, the outcome in D.C. v. Heller might well be decided by one man: Anthony Kennedy, the most protean of Justices. However, in recent years he has also been one of the most aggressive Justices in asserting any number of other rights to justify his opinions on various social issues. It would seriously harm the Court's credibility if Justice Kennedy and the Court's liberal wing now turned around and declared the right "to keep and bear arms" a dead letter because it didn't comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard's Laurence Tribe has come around to an "individual rights" understanding of the Second Amendment.

By the way, a victory for gun rights in Heller would not ban all gun regulation, any more than the Court's support for the First Amendment bars every restraint on free speech. The Supreme Court has allowed limits on speech inciting violence or disrupting civil order. In the same way, a judgment that the Second Amendment is an individual right could allow reasonable limits on gun use, such as to protect public safety.

Here's hoping the Justices will put aside today's gun control passions and look to the plain language of the Bill of Rights for instruction in this case, as Judge Silberman had the courage to do.

 

[v35]

Very WSJ

A gem, every word.

If anyone needs an example of the reason I no longer have any use for TV news, or the vast majority of "mainstream" news outlets, and turn to one source - the WSJ - for most of what I need to know, this editorial is it.

The WSJ has consistently maintained superb editorial standards. Its writing is superior, and its content is always relevant. The WSJ isn't just dry stock quotes and arcane business stuff anymore (I'm not sure if it ever was). Its news reporting is accurate and impartial, and its feature stories are lively and entertaining. The WSJ's audience ought to be anyone who works for money, likes earning it, likes spending it in accordance with his own wishes, and prefers as little government interference with those goals as possible. Sounds simple but compare that with the apparent goals of the rest of "mainstream media". In the WSJ you'll find one consistent agenda - the preservation and promotion of capitalism, which, after all, is but one manifestation of man's desire to exercise the free will given to him by his Creator.

Make no mistake. Capitalism is constantly under attack by those who wish to impose their will upon others. For just one example of that, read the NYT editorial on the same subject. Call it socialism, liberalism, or collectivism, all are enemies of Capitalism. Gun control, environmental control, and - I'm beginning to suspect - attacks upon individual liberty for the sake of national security are the foot soldiers of socialism. Such characteristics define the majority of the mainstream news.

BTW I have no financial interest in the WSJ, I just see it as a fresh oasis in the bilge that characterizes most news media. Pick up an issue once in a while and you'll see what I mean.

 

[tradja]

We get the WSJ at work, so I read it every day at lunch. As someone with a mix of "left" and "right" views, I sometimes find the intellectual contortions on the editorial page a little tortured. (for example, the editorial this fall advocating that insurance companies take over issuing driver's licenses from the govt)

However, I certainly agree that the WSJ's consistent stand on liberty is refreshing. That 2nd Amendment editorial was great. It was written by the Attorney General of Michigan, IIRC? There was a good feature about home invasions last week.

I like the international news coverage as well -- in-depth, lively, and thoughtful, like a libertarian NPR. For example, there seem to be frequent profiles of ambitious small entrepreneurs in the Palestinian areas, Iraq, SE Asia, etc that are very interesting.

Thanks for posting the 2nd Amendment editorial.

 

[ilbob]

(for example, the editorial this fall advocating that insurance companies take over issuing driver's licenses from the govt)

just how would that be any better or worse than the current system where you have to get both a DL and an insurance policy to be able to drive.

 

[Legionnaire]

Thanks for posting the 2nd Amendment editorial.

Yer welcome!

 

[TCB in TN]

just how would that be any better or worse than the current system where you have to get both a DL and an insurance policy to be able to drive.

First of all it would take the individuals currently working for the gov. and privatize them. Ensuring that the cost of the service would be lower and providing, dare I say it, greater customer service. 2nd of all it would likely make getting a drivers lisc. harder as insurance companies would be much more concerned about keeping poor/unfit drivers off the roads. (of course if the gov. intervenes and places rule for them to go by then it would likely limit this effect. Further more most insurance companies would be more concerned about who they issue the lisc and insurance to. I am sure that there are other benifits but those are a few right off the top of my head.n

 

[tradja]

In my dealings with insurance companies, I have dealt with individuals more inept , corrupt, and dishonest than any government employee I have met. Based on those experiences, I would not welcome being required to solicit their permission to operate my vehicle. The industry is simply an institution that I have learned not to trust.

Back on topic, I was very pleased to see the clearly-written, non-inflammatory editorial in the WSJ. Bravo!

 

[bsf]

Also in the WSJ, from the day before, written by my State Attorney General.

http://online.wsj.com/article/SB119577460419701535.html

Second-Amendment Showdown
By MIKE COX
November 23, 2007; Page A13

The Supreme Court has agreed to take up a case that will affect millions of Americans and could also have an impact on the 2008 elections. That case, Parker v. D.C., should settle the decades-old argument whether the right "to keep and bear arms" of the Constitution's Second Amendment is an individual right -- that all Americans enjoy -- or only a collective right that states may regulate freely. Legal, historical and even empirical reasons all command a decision that recognizes the Second Amendment guarantee as an individual right.

The 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." If "the right of the people" to keep and bear arms was merely an incident of, or subordinate to, a governmental (i.e., a collective) purpose -- that of ensuring an efficient or "well regulated" militia -- it would be logical to conclude, as does the District of Columbia -- that government can outlaw the individual ownership of guns. But this collective interpretation is incorrect.

To analyze what "the right of the people" means, look elsewhere within the Bill of Rights for guidance. The First Amendment speaks of "the right of the people peaceably to assemble . . ." No one seriously argues that the right to assemble or associate with your fellow citizens is predicated on the number of citizens or the assent of a government. It is an individual right.

The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . " The "people" here does not refer to a collectivity, either.

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, "the people" are separate from "the states"; thus, the Second Amendment must be about more than simply a "state" militia when it uses the term "the people."
Consider the grammar. The Second Amendment is about the right to "keep and bear arms." Before the conjunction "and" there is a right to "keep," meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

Colonial history and politics are also instructive. James Madison wrote the Bill of Rights to provide a political compromise between the Federalists, who favored a strong central government, and the Anti-Federalists, who feared a strong central government as an inherent danger to individual rights. In June 1789, then Rep. Madison introduced 12 amendments, a "bill of rights," to the Constitution to convince the remaining two of the original 13 colonies to ratify the document.

Madison's draft borrowed liberally from the English Bill of Rights of 1689 and Virginia's Declaration of Rights. Both granted individual rights, not collective rights. As a result, Madison proposed a bill of rights that reflected, as Stanford University historian Jack Rakove notes, his belief that the "greatest dangers to liberty would continue to arise within the states, rather than from a reconstituted national government." Accordingly, Mr. Rakove writes that "Madison justified all of these proposals (Bill of Rights) in terms of the protection they would extend to individual and minority rights."

One of the earliest scholars of the Constitution and the Bill of Rights, Supreme Court Justice Joseph Story, confirmed this focus on individuals in his famous "Commentaries on the Constitution of the United States" in 1833. "The right of the citizens to keep and bear arms," Story wrote, "has justly been considered, as the palladium of the liberties of republics, since it offers a strong moral check against the usurpation and arbitrary power of rulers . . ."

It is also important to consider the social context at the time of the drafting and adoption of the Bill of Rights. Our Founding Fathers lived in an era where there were arms in virtually every household. Most of America was rural or, even more accurately, frontier. The idea that in the 1780s the common man, living in the remote woods of the Allegheny Mountains of western Pennsylvania and Virginia, would depend on the indulgence of his individual state or colony -- not to mention the new federal government -- to possess and use arms in order to defend himself is ludicrous. From the Minutemen of Concord and Lexington to the irregulars at Yorktown, members of the militias marched into battle with privately-owned weapons.

Lastly, consider the empirical arguments. The three D.C. ordinances at issue are of the broadest possible nature. According to the statute, a person is not legally able to own a handgun in D.C. at all and may have a long-gun -- even in one's home -- only if it is kept unloaded and disassembled (or bound with a trigger lock). The statute was passed in 1976. What have been the results?

Illegal guns continue to be widely available in the district; criminals have easy access to guns while law-abiding citizens do not. Cathy L. Lanier, Acting Chief of Police, Metropolitan Police Department, was quoted as follows: "Last year [2006], more than 2,600 illegal firearms were recovered in D.C., a 13% increase over 2005." Crime rose significantly after the gun ban went into effect. In the five years before the 1976 ban, the murder rate fell to 27 from 37 per 100,000. In the five years after it went into effect, the murder rate rose to 35. In fact, while murder rates have varied over time, during the 30 years since the ban, the murder rate has only once fallen below what it was in 1976.

This comports with my own personal experience. In almost 14 years as prosecutor and as head of the Homicide Unit of the Wayne County (Detroit) Prosecutor's Office, I never saw anyone charged with murder who had a license to legally carry a concealed weapon. Most people who want to possess guns are law-abiding and present no threat to others. Rather than the availability of weapons, my experience is that gun violence is driven by culture, police presence (or lack of same), and failures in the supervision of parolees and probationers.

Not only does history demonstrate that the Second Amendment is an individual right, but experience demonstrates that the broad ban on gun ownership in the District of Columbia has led to precisely the opposite effect from what was intended. For legal and historical reasons, and for the safety of the residents of our nation's capital, the Supreme Court should affirm an individual right to keep and bear arms.

Mr. Cox is the attorney general of Michigan.

 

[BB62]

I like what your AG has to say, except one thing:

"Madison's draft borrowed liberally from the English Bill of Rights of 1689 and Virginia's Declaration of Rights. Both granted individual rights, not collective rights."

Neither GRANTED rights, they just recognized them.

 

[Autolycus]

Good read.