Big Lizards:Blog:Entry “The 2nd Amendment DOES NOT "Confer an Individual Right to Keep and Bear Arms"”

« At Last... Court Rules Founders Meant What They Wrote In the 2nd Amendment | Main | Could Afghanistan Use a "Surge?" »

June 26, 2008

The 2nd Amendment DOES NOT "Confer an Individual Right to Keep and Bear Arms"

Hatched by Dafydd

But on the other hand, I must rise to dispute not only Erwin Chemerinsky (on the ~~Hugh Hewitt~~ Dean Barnett radio show today) and Barack H. Obama, but also John S. McCain, who issued a statement today that ends:

But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.

I disagree; it's not specious (though the way the argument is used certainly is): It's actually perfectly true that "the Second Amendment did not confer an individual right to keep and bear arms."

Look at the wording of the Amendment (corrected to modernize punctuation):

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.

The operative clause (the clause that contains the subject and verb of the sentence) is in blue. Nowhere does the amendment say that it confers that right; "to confer" in this case means "to bestow," to grant or give. But the amendment speaks of the right as if it already existed, predating not only the amendment itself but the Constitution, the country, and indeed, every other constitution, charter, or country that has ever been. The amendment only states that the Constitution forbids whichever entites it controls from infringing on that pre-existing right.

Bearing in mind that I'm not a lawyer -- though I sometimes play sea-lawyer or Philadelphia lawyer on the web (as today!) -- it's my understanding that the Founders saw constitutionally protected rights falling into two main categories:

Those rights specifically created by the Constitution, such as the right to vote in federal elections and the right to petition the government for redress of grievances; these are rights that cannot exist absent not only a government but this particular government: You can't have a right to vote for your member of Congress if your country has only a king and his privy council.

Those rights that are fundamental to all people everywhere, and which fall within the "inalienable rights" described by the Jeffersonian phrase "life, liberty, and pursuit of happiness." These are fundamental rights that the Founders believed should be protected by every government -- which includes the states as well as the feds.

Thus it's perfectly proper to "incorporate" to the states those fundamental rights protected by the Constitution, while not incorporating the created rights. Despite the fact that the First Amendment begins "Congress shall make no law," I nevertheless agree with incorporating its fundamental protections to the states: the prohibition against establishing or prohibiting free exercise of religion, abridging freedom of speech, freedom of the press, or the right to peaceably assemble. I can see why the right to petition need not be incorporated, as that is a created right.

And yes, I am quite aware that individual states at the time the Constitution and the First Amendment were enacted had established state churches and did, in fact, prohibit free exercise of religion. Like the right to liberty versus the peculiar institution of slavery, the Constitution and the Bill of Rights were ratified in an environment of essential contradiction. Those contradictions would eventually have to be resolved; this resolution can come from new amendments (such as the Thirteenth, Fourteenth, and Fifteenth) or, post Marbury v. Madison, from the Supreme Court.

Today, I believe Americans, including judicial conservatives, would be utterly outraged if a state were to start jugging citizens for speaking out on issues, or rounding up Jews for heresy, or nullifying habeas corpus rights, so that the authorities could simply round up and incarcerate anybody they didn't like. We've long since completely accepted that not even the states can violate fundamental rights, at least of American citizens (most of us would extend that to any lawful resident of any nationality).

Deep down, we understand that our government did not give ("confer") those rights to us; we have them inherently and inalienably from our Creator, or even just as an inherent aspect of having consciousness and a conscience. The word "inalienable" means that fundamental rights cannot be taken or even given away. Even the mullahs of Iran cannot take away those rights; they can only violate them... and doing so constitutes a crime against humanity, making the mullocracy of Iran a criminal government.

(It's not necessarily our duty to enforce those rights; "we are champions of liberty everywhere, guardians only of our own.")

The way you determine which protected rights are fundamental is to ask whether its logically possible for the right to exist before the United States government was created.

Sidebar: "Logically impossible" means something that cannot even be conceived; the classic example is that it is logically impossible for God to create a zebra that is not created by God... it cannot exist even in theory. If you can actually conceive of it -- such as the moon smiling and laughing at us, or a mountain standing on its head -- then it's at least logically possible, even if it is physically impossible in reality.

It's obviously not logically possible to petition something, such as the United States government, that does not even exist; it's a silly exercise in semantics. Likewise, it's logically impossible to vote for your representatives before there is even a House of Representatives. Therefore, these are created rights, not fundamental rights.

By contrast, the right of freedom of speech was frequently discussed in the British Parliament long before we existed, and freedom of religion was argued for centuries, in many countries, before the 1780s. The fact that the concept of a right can be seriously discussed as policy means that it is not "logically impossible."

And it certainly is logically possible to envision a right to arms before the United States existed; arms existed, many countries allowed some or all of their subjects to be armed (such as England, where the stalwart yeomen were expected to take up arms to fend of foreign invasion; or Italy, where men and even women could carry swords and pistols to protect themselves). Therefore, by recognizing the right to keep and bear arms as a right and pledging to protect it from infringement, the Constitution clearly indicates that this is a fundamental right that was not "conferred" by the Constitution... no matter what Erwin Chemerinsky claims.

And I'm pretty sure the Founders would agree with me -- because all I'm doing is agreeing with them.

Hatched by Dafydd on this day, June 26, 2008, at the time of 5:58 PM

Trackback Pings

TrackBack URL for this hissing: http://biglizards.net/mt3.36/earendiltrack.cgi/3094

Comments

The following hissed in response by: Bart Johnson

The British version of "reasonable restrictions" was that Catholics could not own property. Sucks to be them, you had to be a property owner to keep and bear arms. So Sayeth the King, So Sayeth the Law.

I knew the Irish were ticked off about something.

The above hissed in response by: Bart Johnson at June 26, 2008 9:53 PM

The following hissed in response by: nk

Dafydd, you are an idealist after all? (Ducks)

The above hissed in response by: nk at June 26, 2008 9:53 PM

The following hissed in response by: Bart Johnson

I knew the Irish were ticked off about something.

The above hissed in response by: Bart Johnson at June 26, 2008 9:56 PM

The following hissed in response by: Bart Johnson

Server was down, please delete #3, duplicate of #1

The above hissed in response by: Bart Johnson at June 26, 2008 10:01 PM

The following hissed in response by: nk

Yes. The Second Amendment abolished the distinction between those class who could bear arms and those who could not (or could only take up arms at the behest of the authorities). Scalia goes into this in detail in the opinion and also in contradicting Stevens's dissent that would equate the Second Amendment with the "hue and cry".

The above hissed in response by: nk at June 27, 2008 4:50 AM

The following hissed in response by: David M

The Thunder Run has linked to this post in the - Web Reconnaissance for 06/27/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

The above hissed in response by: David M at June 27, 2008 9:55 AM

The following hissed in response by: Geoman

I'm always confused when people argue about the constitution.

The constitution does not to confer any rights to the people, but restrains government from taking or abridging pre-existing rights. With this thought in mind, all the amendments should be interpreted...ahem...as liberally as possible. The benefit of the doubt should always go toward the people, never toward the ability of the government to regulate or control.

In that context the reading of the second amendment is very simple - the first section ("a well regulated militia") is the reason why the government can never abridge the existing right (to keep and bear arms).

Why don't gun control advocates ever argue to amend the constitution to strike the second amendment? I think that says all there is to say about the strength of their arguments.

The above hissed in response by: Geoman at June 27, 2008 9:55 AM

The following hissed in response by: Geoman

I'm always confused when people argue about the constitution.

Why don't gun control advocates ever argue to amend the constitution to strike the second amendment? I think that says all there is to say about the strength of their arguments.

The above hissed in response by: Geoman at June 27, 2008 9:55 AM