January 16, 2007

Requiring gun ownership.

Glenn Reynolds has a NYT op-ed about towns that require residents to own guns. He likes this on the ground that it reduces crime if it is known that everyone in town has a gun in the house. What if you don't want to own a gun? If you think individuals have a right to own guns, shouldn't you think they have a corresponding right not to own guns? The right of free speech includes the right not to speak.

Whether the Second Amendment protects an individual right or a collective right is a hot question. ("Under the 'collective right' view, the Second Amendment is a federalism provision that provides to States a prerogative to establish and maintain armed and organized militia units akin to the National Guard, and only States may assert this prerogative.") Glenn alludes to the collective right view here:
The twin purposes of self and community defense may very well lie behind the Second Amendment’s language encompassing both the importance of a well-regulated militia and the right of citizens to keep and bear arms. As the constitutional and criminal law scholar Don Kates has noted in the journal Constitutional Commentary, thinkers at the time when the Constitution was written drew no real distinction between resisting burglars, foreign invaders or domestic tyrants: All were wrongdoers that good citizens had the right, and the duty, to oppose with force.
Don't you have to adopt the collective right view to believe people can be forced to possess guns?

58 comments:

AllenS said...

Buy a squirt gun (water). That way you could technically be in compliance (lawyer talk).

R2K said...

People should be forced to own not only guns, but grenades and certain kinds of cross bows. The more weapons out there, the more safe we will be. Like in WWI. Just stockpile the guns, guns save lives. Guns dont kill people, bullets dont kill people, the hole in their internal organs kills them. All these hippies and their gun hatred.

Abraham said...

Don't you have to adopt the collective right view to believe people can be forced to possess guns?

I really don't see why. "Not speaking" is protected because the government is compelled to "make...no law...abridging the freedom of speech." Clearly, if you are compelled to speak a thing, a "freedom" is "abridged." But the Second Amendment merely states that the "right...shall not be infringed." It's not a "freedom of arms bearing", so it's not a right to a certain choice, it's a specific right to do a thing.

Is the right to due process negated because people are required to show up in court? Should appointment of backup counsel violate the Sixth Amendment?

Anonymous said...

I've never heard of laws like that being enforced. It is more about making a positive statement about gun ownership and providing a massive amount of deterrence.

I would say that the federal government can't require or ban gun ownership but governments from the state level on down can.

Should the government be able to require insurance, or that you wear a seatbelt or a helmet when riding a motorcycle/bike, disallow smoking on private property or any number of the myriad things governments force people to do?

If you think the state is reasonable in these powers then it is simply a matter of partisan politics if you don't like the ability to require gun ownership.

Anonymous said...

I'm a hippy, yo. Are these guns free?

altoids1306 said...

r2k:People should be forced to own not only guns, but grenades and certain kinds of cross bows. The more weapons out there, the more safe we will be. Like in WWI. Just stockpile the guns, guns save lives. Guns dont kill people, bullets dont kill people, the hole in their internal organs kills them. All these hippies and their gun hatred.

Yup, r2k's post is a model of rational thought, and belies no hint of hippie gun hatred.
------------------------------

The argument for gun ownership falls in two categories, basically. The first is providing the means to resist government tyranny. Freedom fighters in the hills, etc, etc. Most people don't take this too seriously. I don't think it's realistic to think that a citizen's militia could defeat a modern army, except on asymmetric terms.

The second is self-defense, which is a more limited role for guns, and doesn't involve reduction-to-absurdity arguments like "People should not just be able to own guns, but nukes as well." I strongly support this element of gun ownership, because it provides some level of protection against government failure, whether it be slow police response to home invasion, or large-scale civil disorder like the LA riots. Gun ownership is part of a decentralized emergency response that can help bridge the gap between the disruption and restoration of government services. If you stockpile food, water, medical supplies and batteries before hurricanes, anticipating the loss of power, water, and transportation, doesn't it also make sense to prepare for loss of police protection?

David L said...

One, rights are individual, as in the right of free speech. Everybody has ths same right.

Collective rights are not rights at all. They state powers. Collective rights, Chicago style, means that the priveledge of owning a gun is restricted to those who contribute the mayor's re-election fund.

As whether, a state, a legal entity under the Constitution, can order citizens to own firearsm, yes, the Tenth Amendment. If they should is another question.

CB said...

What if you don't want to own a gun?

Is that meant as a serious critique of this law? I don't even know how to refute it.

What if you don't want to pay taxes?
What if you don't want to drive the speed limit?
What if you don't want to pay your employees?
What if you don't want to sell your house to a black person?

Etc.

Anonymous said...

I am a supporter of second amendment rights (about the only place where I find myself agreeing with Republicans more often than Democrats) but it is arrived at via the Liberal argument that people should have any right available to them that there is not a compelling argument that they should not have. Therefore, absolutely, anyone in the aforementioned town should have the right to not own a gun.

Besides, I wonder if the law extends to people who have epilepsy, cerebral palsy, Parkinson's disease, Turette's syndrome or other diseases who might be subject to sudden muscle spasms or loss of consciousness, or for that matter those who are simply accident prone (we've all known one of them), or perhaps to people who are just uncoordinated and can't hammer in a nail without hitting their thumb. What about Granny who just turned 93, is going blind and had to give up her driver's license last year? And then there is the guy who always staggers out of the bar at closing time, and who sees five of everything.

You know, just ordinary folks-about-town who I'm sure I will feel a lot safer if they have a gun.

Anonymous said...

Most, if not all of these types of laws, generally are loaded with loopholes. For instance, the first one, from Kennesaw, GA, has exceptions for convicted felons, and "conscientious objectors." In other words, people who either by law, or by choice can't or won't own firearms.

So even in those towns, you still have a right to NOT own a firearm.

yetanotherjohn said...

I agree that to be consistant, my right to own a gun should be balanced by your right to not own a gun. I should no more force you to own a gun than you should force me to not own a gun.

And that would mean that you could "free load" off my gun. If 4 out of 5 homes in a neighborhood were known to own a gun, the fifth home would enjoy some extra protection free of charge. Even if it was known which was the gun free home, the threat of a neighbor taking an interest in the crime would reduce the chances of crime.

Guns are one of the great technological equalizers. So any plan for taking your guns involves reducing you power. As such, any plan for taking your guns should be viewed with skepticism unless it has a clear plan on how it would de facto uniformly reduce the power for all. Just leaving guns in the hands of those who otherwise have shown that they do not endorse the social compact of obeying the laws fails the test of reason.

Anonymous said...

Don't you have to adopt the collective right view to believe people can be forced to possess guns?

I don't think so unless the government is supplying the guns. But on the other hand I don't think that forcing people to possess guns is necessarily a good idea.

On the other hand (I'm a mutant) such a law might not be a bad idea. It would be next to impossible to enforce and just might make the predators think twice. I recall reading that states with CCW have been reporting crime trending down. Maybe this law might help the two states (yours and mine) that don't allow CCW.

Criminals, like politicians, like unarmed victims.

hdhouse said...

If the collective theory is true or applicable, then we should, (as the door is wide open) pass laws that prohibit all guns. NO ONE can own one privately in their homes since the debate is reduced to laws affecting ownership. If I can pass a law that says you must I can also pass laws that say just about anything in the spectrum from all to none.

Oh this should be a hot topic. All the gunslingers on here who are sure Attila is about to ride into town and rape their daughters and plunder their homes.

The glories of western civilization.

Mortimer Brezny said...

No. You have an individual right to own guns, you have a collective duty to own guns. If you choose not to exercise your right and so violate your duty, you pay a reasonable fine.

Ruth Anne Adams said...

I think it's still a strong deterrent to potential criminals that they just don't know whether the homeowner has a gun.

vbspurs said...

Quoting Insty on NYT:

“Greenleaf doesn’t really have crime ... the most violent offense reported in the past two years was a fist fight.” Rather, it’s a statement about preparedness in the event of an emergency, and an effort to promote a culture of self-reliance.

True. Switzerland has the same stricture, in that every household MUST BY LAW have a form of protection in their possession, and every citizen must be prepared to defend his homeland.

But I don't like "musts".

1) Though it's a low-crime area, wouldn't this Greenleaf law if expanded, put guns into the hands of potential criminals?

Those who could get guns legally, but might not (because of background, etc.) have been in trouble with the law yet.

2) I agree with the statements by others above, that not owning a gun is also a freedom, which surely is implied in the Second Amendment (which I love and defend, and wouldn't like to see altered by peaceniks).

I am a crack shot for a girl, coming from a military family as I do. But I don't want guns in my home.

Maybe this will change, and though this law doesn't affect me, I feel for Greenleaf citizens who are in my position, there.

P.S.: Won't I and others be laughing on the wrong sides of our mouths, if we are ever called to defend our homesteads from attack, including a terrorist one? (Which this topic dances around) I wonder if my ideals then, will make me beat myself up for my rank foolishness.

Cheers,
Victoria

Freder Frederson said...

He likes this on the ground that it reduces crime if it is known that everyone in town has a gun in the house.

As usual, and with most of the gun nuts out there, Glenn uses dubious or just plain bogus statistics (I won't name the worst offender for fear of being sued for defamation) to support his contention that "more guns mean less crime". The legend of Kennesaw, GA, has grown over the years until it has become proof positive that gun ownership lowers the crime rate because there was an amazing 89% drop in the burglary rate immediately following the passage of the mandatory gun ownership ordinance.

Never mind that to call Kennesaw a suburb of Atlanta in 1982 is a complete misnomer. It is now, but certainly wasn't then (its population in 1980 was 5095, by 2000 it was 21,675). It is on the far north edge of Cobb County and was about to be gobbled up by the Atlanta Metro Area. And I doubt that the ordinance caused one person to go out and buy a gun or caused burglars working in the area to suddenly think, "oh my god, I might get shot burglarizing someone's home, people around here never had guns before." This is a part of the country where I remember two specific incidents (one in north Georgia not far from Kennesaw and one in Tennessee just outside Chattanooga) where unarmed burglars were shot in the back and killed by homeowners as they fled (outside the home but still on the property) and no charges were brought against the homeowners. The shootings were considered justifiable.

As Mark Twain would say, there are lies, damn lies and statistics. And in the case of Kennesaw, the burglary statistics provided a very convenient statistic. By taking the year immediately preceding the passage of the ordinance, in which Kennesaw was experiencing a very bad year for burglaries, it appears that there was a precipitous drop that could be attributed to the ordinance. But if you compare it to more than just the previous year, 1981 is the anomaly, and is thus not valid for comparison. Considering the statistics and the number of burglaries, just one hardworking team of burglars in a town of 5000 can really screw up your statistics.

Anonymous said...

Wonder if the Ole Professor advocates arming Knoxville.

Simon said...

Ann said...
"Don't you have to adopt the collective right view to believe people can be forced to possess guns?"

I don't believe that's necessarily so. As previously explained, I view the Bill of Rights as a restraint on the power of government, not as a codification of amorphous natural law rights. Indeed, in my view, "the 'natural law' theory of the Constitution ... degrade[s] the constitutional safeguards of the Bill of Rights and simultaneously appropriate[s] for th[e] Court[s] a broad power which [they] are not authorized by the Constitution to exercise." Adamson v. California, 332 U.S. 46, 70 (1947) (Black, dissenting). Thus, just as the First Amendment is a restraint on the government's power to prevent most kinds of speech, rather than an affirmation of some natural-law right to say one's peace ("I don't believe that the First Amendment guarantees the right to free speech ... [Rather, it] prevent[s] the government from taking away that right to free speech"), so too is the Second Amendment a restraint on the government's power to ban the "keep[ing] and bear[ing]" of "arms," however those terms may be defined, rather than a codification of some natural law right to possess the means of self-defense. Viewed through that lens, it seems clear that a regulation requiring firearm ownership is incapable of violating the Second Amendment.

If an argument cannot be found in the Second Amendment, perhaps one can be found elsewhere? I would imagine a due process challenge will arise in this day and age, but needless to say, I would not also find any due process argument appealing; it does not deprive a person of "liberty" within the well-established meaning of that term prior to the corruptions entertained in the 20th Century, and to the extent that it deprives a person of "property" by forcing her to spend money she would not otherwise spend to purchase a firearm, such a rule would have far-reaching effect - it would also implicate laws mandating the purchase of insurance, for example.

The Constitution neither seeks to nor does resolve every controversy. There are some issues where it simply cannot be used to short-circuit the debate; this is one of them. I suppose the people who oppose such laws will just have to advance their disagreement in the manner that the Constitution does contemplate: by persuading a majority of their fellow citizens and expressing that view at the ballot box.

Kirk Parker said...

Altoids,

"I don't think it's realistic to think that a citizen's militia could defeat a modern army, except on asymmetric terms."

Oops, you mean the sort of asymmetric terms that got our very own Revolutionary War going? I think the 2nd Amendment is highly underrated when it comes to resistance to government tyranny--not merely because it broadens the possibilities for assymetric warfare, but also because of the mindset it instills. Consider: which troops are more likely to refuse orders to fire upon their fellow citizens--those brought up on alles in urdnung or those who remember "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants"?

Meade said...

I wonder if there would have been fewer homes and churches bombed and set afire by the KKK nightriders in Birmingham, Alabama in 1963 if citizens had been asked, not required but asked, by their city council to arm themselves with shotguns.

Ricardo said...

I live in a high-rate CHL (concealed handgun license) town, and it's true that crime statistics seem to be going down. A side benefit is that all the people who used to carry guns anyway, now have to go to training courses which (in addition to marksmanship testing) give them pointers on when to draw and shoot their guns. I can't tell you how much safer I feel with all this weaponry around me, and I can see the day when some idiot tries to rob a convenience store I'm in, and forty armed citizens pull their weapons and start blasting away at the perp. It won't do much for the insides of the convenience store, or for the few people who might get hit by ricochet rounds, but it will help deter future thefts, and we have an insurance industry that will help put the store and injured bystanders back together again, and can take care of any other collateral damage claims.

As to your main point. We live in a majority-rule system, where (to a certain extent) minority rights are protected. But people don't have a right to opt-out of everything that doesn't strike their fancy, once the majority has ruled. So sorry anti-gun-lovers, as the Three and then Four Musketeers said while striking their swords together: "All for one, and one for all."

Glenn Howes said...

Let's replace the loaded word (pun not intended) with a neutral word. And defend the following sentence.

Don't you have to adopt the collective right view to believe people can be forced to possess fire extinguishers?

Daryl Herbert said...

I think it's a tongue-in-cheek parody of gun control proponents' arguments: you have to give up your guns because statistics say it makes us all safer. So Glenn is turning that on its head. It's cute but he isn't serious.

Abraham said...

Oh this should be a hot topic. All the gunslingers on here who are sure Attila is about to ride into town and rape their daughters and plunder their homes.

Why do you insist on poisoning the well this way? It's very rude. That said, I agree with you for the most part, and that's why I think the collective rights theory is crap. I don't think, though, that the Second Amendment even as an individual right creates an individual right NOT to bear arms.

Anonymous said...

People should not be required to own guns. They should be required to own flutes.

Owning a flute will do about as much for your safety as owning a gun. And it will have the added benefit of keeping me employed. :-)

vbspurs said...


Owning a flute will do about as much for your safety as owning a gun. And it will have the added benefit of keeping me employed. :-)


Awesome.

I dated a flautist once, and though they are manic and picky, they are great in bed. No crumbs.

Cheers,
Victoria

Revenant said...

Don't you have to adopt the collective right view to believe people can be forced to possess guns?

Do you have to accept a collective right view of free speech to believe people can be forced to say what their income was last year?

I don't see why the second amendment has anything to do with this, personally. It is more akin to the draft, where people are forced not only to keep and bear arms, but to use them against other people they have no personal reason to shoot. The law can presumably be justified the same way the draft was -- as a necessary step to make the community safer.

Anonymous said...

No, you cannot force people to own guns. You can, however, deny them police protection or other valuable services if they don't.

Hey said...

Since Glenn spefically endorses the idea that the 2nd amendment creates both an individual and a collective right to keep and bear arms, saying that he obviously is only picking the collective is an ill-intentioned misreading of his post. It's part of the evil Scalian "words mean what they say" school of Constitutional interpretation, rather than of the good Souter "words mean whatever I feel like" school.

Further, the ability of the States (and the Feds) to raise forces under compulsion provides the power to mandate gun ownership. There are many historical examples of how the States, and previously, the Crown, regarded all free men as part of the militia and required them to keep arms, even in times of peace. In the past, the Crown even instituted mandatory practice to keep up the skill of the English Archers.

We can argue over whether it is a good idea to mandate ownership of firearms, but it is secure constitutionally as well as in the Common Law. To say otherwise is to betray one's historical ignorance and the lengths to which one will got to support one's ideology in the face of contrary facts.

I do love that Ann is taking a Libertarian approach to righs, rather than a Constitutional one. Of course people should be free to not own guns if they do not wish to do so, but it is fairly clear that they DO NOT have this right in the face of a State mandate. Now these laws are all crafted to exclude COs, felons, the mentally ill, and other such people who would be ill-advised to have guns. But this crafting is for the best interests of the locality and the ease of operation, rather than thanks to constitutional mandates.

Similarly, one should be free to enter or not enter the military, as it is both an offence against liberty and a degradation the capabilities of the military to compel service. In nearly every country, one does not have the right to refuse to serve, though many countries have seen the benefits of an all-volunteer military and have stopped conscription during all but high-intensity existential struggles.

As with most people, Ann's strong opinions are pragmatic, while other people's are the product of unthinking ideology that is out of touch with reality and inherently evil. Hopefully she'll realise this dichotomy and be more charitable in dealing with ideas, but more likely she'll dismiss the similarities (I know I usually do).

rightwingprof said...

I'm not sure how individual vs. collective rights can be a hot issue, since collective rights do not exist, as far as I know. Can someone give me an example of where the Constitution acknowledges a collective right?

As for the militia clause, no literate human being -- make that honest literate human being -- can parse it as a modifying clause. It's an absolute. It does not modify the main clause.

It's a silly, illiterate argument that even the Brady Bunch has abandoned.

rightwingprof said...

By the way, Knoxville is armed.

James Wigderson said...

I'm willing to take a broad view of the Third Amendment to prevent myself from being ordered to purchase a gun.

Veeshir said...

Don't you have to adopt the collective right view to believe people can be forced to possess guns?

Isn't that a non-sequitur? I mean, how does that follow?

I would say it's a totalitarian viewpoint that people should be forced to enjoy a right, but collective?
I think that the First Amendment gives me freedom of speech. Me personally, just like you personally. Therefore, if I demand that people are forced to utilize their freedom of speech, does that make me a collectivist?

Let's pretend I'm Glenn.

I believe that the 2A is an individual right.
I believe that a law that requires people to own guns is good.
Therefore I think that the 2A is a collective right.

I just don't understand how that follows, it makes absolutely no sense to me.

Now if you had said, "collective responsibility", then I would be with you. All people should be responsible for themselves and their dependents (like children or dogs (not cats)), but I don't think that makes me a collectivist. Just the opposite I would think.

Liam Colvin said...

This law is about as stupid as the Morton Grove type laws. Neither is effective, and both are merely grandstanding to make a (useless) point.

Own a gun or not. Just don't try to tell me I can't because they scare you.

Anonymous said...

Victoria:

I am a crack shot for a girl, coming from a military family as I do

Why add, 'for a girl?' firing a gun is not something that girls are inherently worse at. If you are a crack shot then you are a crack shot.

Liam Colvin said...

To expand on Ricardo's comments:

According to the gun control community, we were supposed to see gunfights at the 7-11 over parking spaces, and yet gun crime rates have gone down steadily. Gun crime rates amongst those with CHL are well below the general population.

Gun control is about feel good laws that gives legislators something to point to during campaigns. If the laws are evaluated as to their direct effects on gun crime, the actual effects are negligable at best.

Anonymous said...

Ann wrote: What if you don't want to own a gun? If you think individuals have a right to own guns, shouldn't you think they have a corresponding right not to own guns?

The town ordinance in Greenleaf, ID doesn't compel anyone to own a gun. The ordinance in question requests residents who do not object on religious or other grounds to keep a gun at home in case they are overrun by refugees from disasters like Katrina. Even Kennesaw, GA, which requires the head of households to own a gun, has an exemption for people who conscientiously object to owning a firearm or have a mental or physical disability that would prevent them from owning a firearm.

Ann Althouse said...

Veeshir: The point -- as I say in my first paragraph -- that if something is an individual right, it probably should be interpreted to give the individual the choice whether to do or not do it. For example, there is a right to have an abortion... get the idea? There is a right to speak that embodies a right not to speak.

Someone mentioned the right to counsel, consider why that might mean that you also have a right to refuse counsel and act as your own lawyer.

Remember rights are about the private individual resisting the intrusions of government. I can't accept compelling people to own guns, but it is consistent with the collective view of the Second Amendment.

vbspurs said...

Why add, 'for a girl?' firing a gun is not something that girls are inherently worse at. If you are a crack shot then you are a crack shot.

True, Eli, true.

I suppose in mind "crack shot" sounds like I'm boasting (which I am), which "for a girl" lessens in arrogance.

See? :)

Don't worry. I know my self-worth. Perhaps, I'm too aware of it...and that embarrasses me.

Cheers,
Victoria

The Drill SGT said...

Theo Boehm said...
People should not be required to own guns. They should be required to own flutes.

Owning a flute will do about as much for your safety as owning a gun.


It's the ammo that is the issue. I own only my Grandpa's 12 gauge pump shotgun. I used to have the VC rifle I brought back from Nam, but I turned it over to the local police a couple of years ago.

Anyway, my Easterner wife (Lawyer) doesn't allow my ammo, but I'm a firm believer in the deterrent power of sound of a 12 gauge. I'm a Westerner. If we have a break in at our house, I'll have my wife call the cops and I'll stand in the dark, around the corner at the top of the stairs and rack that 12 gauge back. It makes a very distinctive sound. If the burglar doesn't leave, then he already had evil personal intent toward us anyway. I'll butt stroke him as he rounds the corner. (sorry, LOL, that doesn't mean caress his ass. That means swing the butt of the shotgun vertically upward and break his face with it.)

The Drill SGT said...

Awesome.

I dated a flautist once, and though they are manic and picky, they are great in bed. No crumbs.

Cheers,
Victoria


Victoria,

as part of your continuing education in Americanisms, perhaps you haven't been exposed to "playing the skin flute". LOL

Revenant said...

I can't accept compelling people to own guns, but it is consistent with the collective view of the Second Amendment

As I noted earlier, it's consistent with allowing a draft. The second amendment doesn't even need to factor into it at all. There's no difference between forcibly taking someone's money (via taxation), buying a gun with the money, and forcing him to use it... and simply forcing him to buy himself a gun.

Ernie Fazio said...

Is it not true that the Federal Government "shall not infringe upon" the right to bear arms, but state and local governments can and have? A state could outlaw guns, couldn't it? Are there any cases where the federal courts have invalidated a state or local law banning guns? I do not think so. How about the taxing of ammunition? A law taxing the ammunition needed to fire hand guns could effectively make firing a hand gun a too expensive activity. Does the state have the power to enact such a tax? I believe it does. Discussion?

Anonymous said...

Ann --

It seems as though you're saying: If the government can compel gun ownership, then they can ban it. This is what you're getting at with this "collective view of the second amendment" stuff, right? Those that take the collective view think that the second amendment empowers state governments to form "well-regulated militias", and implies no individual right to own guns; right?

So it seems that you think that pro-gun people have shot themselves in the foot with this law, compelling gun ownership, because you think that if this law is valid, then this validity opens the door for gun banning.

This is absurd; and it appears that there's a basic logical fallacy in your reasoning. The second amendment is a right to own a gun, and so it's a limit on the government from preventing gun ownership. It's not a freedom of choice, like speech. If you're forced to say something, then your freedom is abridged; but if you're forced to own a gun, this doesn't infringe on your right to own a gun. It infringes on your right NOT to own one; but there is no such right implicit in the amendment, any more than the right to pay taxes implies the right to opt out of it.

And I think that it's a sad state of affairs when all of these very well-informed people (you and your commenters) discuss the "constitutionality" of a law without once mentioning the intent of the writers of the constitution. Of course, the writers thought that there was an individual right, and a responsibility, to own guns. Had they suspected that one day we'd have debates about gun ownership, they would have made this right even more explicit -- as they would guidelines for interpretation. Admittedly, a strict interpretation of the constitution results in some pretty backward results; but that's why we have procedures for amendment. That's how the framers wanted the constitution to "live" and "breathe", by being amended, not by having their words reinterpreted with new meanings by legal wizards in black robes.

Simon said...

Ernie Fazio said...
"Is it not true that the Federal Government "shall not infringe upon" the right to bear arms, but state and local governments can and have? A state could outlaw guns, couldn't it?"

That depends very much upon your view on the extent to which the Bill of Rights is incorporated against the actions of the states by virtue of the Fourteenth Amendment. My own view - similar to that of Justice Black - is that the Fourteenth Amemdment clearly prevents the states from "mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States," and it seems no less clear that the peculiar "priveleges or immunities" peculiar to citizens of the United States in 1868 were the Constitutional restraints enforcable against their government, the most important of which are of course the restraints contained in the Bill of Rights. Duncan v. Louisiana, 391 U.S. 145, 166 (Black, concurring) ("the words 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States. What more precious 'privilege' of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights?").

This view, to put it mildly, has not prevailed; rather, the Court has incorporated its favored parts of the Bill of Rights (and anything else that has taken its fancy) by way of "substantive due process," the premise that anything the court deems to be "implicit in 'the concept of ordered liberty' ... [is] enforceable against the States through the Due Process Clause," Wolf v.Colorado, 338 U.S. 25, 28 (1949), a catalog which at any given time may (or may not) include some, all or none of the protections of the bill of rights, depending on whether the Court is exercising its "boundless power under 'natural law' periodically to expand and contract" those protections, Adamson, supra at 69 (Black, dissenting) (cf. County of Riverside v. McLaughlin, 500 U.S. 44, 60 (1991) (Scalia, dissenting) ("this Court's constitutional jurisprudence ... alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not)"); Duncan, at 176 (Harlan, dissenting) ("Apart from the approach taken by the absolute incorporationists, I can see only one method of analysis that has any internal logic. That is to start with the words "liberty" and "due process of law" and attempt to define them in a way that accords with American traditions and our system of government")). Of course, this is a nonsense -- "[i]f due process means this, the Fourteenth Amendment ... might as well have been written that 'no person shall be deprived of life, liberty or property except by laws that the judges of the United States Supreme Court shall find to be consistent with the immutable principles of free government.' It is impossible for me to believe that such unconfined power is given to judges in our Constitution that is a written one in order to limit governmental power," Duncan, at 168 (Black, concurring) -- but a nonsense with five votes trumps anything else with only four votes.

Consequentially, if one adopts the view that the Bill of Rights may nor may not apply against the states, or if one premises that view on weird and novel notions of due process rather than the privileges or immunities clause, then it is far from clear that it matters what the Second Amendment means for the purpose of the question "a state could outlaw guns, couldn't it?," or whether it is a collective or individual right, since it can be applied or not applied against the states depending on whether one thinks there is somewhere implicated a right "implicit in the concept of ordered liberty," what precisely the contours of that right are, and whether you can get four of your colleagues of the Supreme Court of the United States to agree.

vbspurs said...

Sure I do, Drill Sgt! ;)

Heh. Beef Missile.

Cheers,
Victoria

Simon said...

Steven said...
"I think that it's a sad state of affairs when all of these very well-informed people (you and your commenters) discuss the "constitutionality" of a law without once mentioning the intent of the writers of the constitution."

The "intent of the writers of the constitution" is irrelevant. See Bork, The Tempting of America (1990), 144 ("Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time"); Scalia, A Matter of Interpretation (1998), 38 ("it is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as a criterion for interpretation of the Constitution. I reject it for both ... What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended") (emphasis added); Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 68 (1994) (“[i]ntent is elusive for a natural person, fictive for a collective body”). What is relevant is the meaning of the words as they would have been understood to mean by the society that adopted them.

Nor is "a strict interpretation of the constitution" desirable; see Scalia, supra, 23 ("I am not a strict constructionist and no one ought to be ... A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means"). As I explained here, for example, a strict construction of the First Amendment would confine its application purely to statutes, not to executive actors, and very possibly only to Federal statutes - clearly an absurd result.

altoids1306 said...

Kirk Parker:

I agree with you that the 2nd amendment could be a powerful deterrent against government tyranny.

But "asymmetric terms" isn't just the guerilla tactics practiced by Greene during the revolution - I think the true asymmetry that terrorists exploit is our unwillingness to cause civilian deaths. I'm not sure the would-be American freedom fighter is willing to cross that line (McVeigh and Co excepted).

In my opinion, the greatest defense we currently have against government tyranny is a patriotic and conservative officer corps. (By conservative, I mean reserved and traditionalist)

Anonymous said...

Drill Sgt. makes the point that one use for a gun, absent ammo, is to make the scary sound of chambering a round to frighten off miscreants.

I contend a flute has the advantage in making scary sounds. Wanna hear me play Density 21.5 sometime? Anyone within earshot is certain to flee.

In all truth, I did scare off a prowler this way once. Someone was stalking my girlfriend, and one night he was skulking around in the bushes underneath her windows. Before she dialed 911, I decided the fastest way to get rid of him was to tootle variations on the "Mickey Mouse Club Song" (in the key of F, as I recall). I leaned to the window near his hiding place and proceeded to let him know musically just what I thought of his behavior. The sight of me grinning and giving him a flute-flavored raspberry must have convinced him that I was batshit crazy (not an unreasonable assumption). He fled over the back fence, taking out a couple of bean poles as he went. Never came back.

Now if you can't play the flute, a Winchester Model 12 might be considered an alternative. Of course you could take up the piccolo. That'll really get rid of them.

Oh, and (there's that phrase again) Drill Sgt., please, no crude jokes! Victoria has just come back after long absence. We don't want to scare her away. It would be a sadder place if no one signed off "cheers."

hdhouse said...

Steven said...
Ann --
"The second amendment is a right to own a gun, and so it's a limit on the government from preventing gun ownership...Of course, the writers (framers) thought that there was an individual right, and a responsibility, to own guns. That's how the framers wanted the constitution to "live" and "breathe", by being amended, not by having their words reinterpreted with new meanings by legal wizards in black robes."

Then Steven, I ask you - not that you will give it much thought - how is it that the 2nd amendment is so clear to you and not to so many others? Why is it that the framers - who wrote so beautifully and with great wisdom, decided to toss in the milita reference? Just to be tricksters?...a copying error on the fair copy? Someone hit the delete key and leave out some words?

Your living and breathing through amendment only is a cheap and tawdry - dare I say intellectually lazy - way of cutting off the need for wisdom and insight in the judiciary. And then what happens to the idea of personal differentiation in interpretation of law between individuals only to be settled in court?

Signing statements for everyone?

Bottom line is there is disagreement about this amendment and the debate about such a law demonstrates a lot of things...not the least of which is you might not be correct.

Kirk Parker said...

Ernie,

There's actually very little to discuss (even if we did restrict ourselves to a pre-14th amendment point of view), since the great majority of state constitutions have right-to-bear-arms provisions that are even stronger than the 2nd amendment.

hdhouse said...

Frankly I presume that the "default position" to "right to bear arms" is NOT BEARING ARMS. It says you can (albeit in the framework of the militia which you gunlovers seem to disregard when convenient...i mean it is perfectly clear to me that the 2nd amendment gives the states the right to arm a militia and if the state cannot afford to arm the militia or it is impractical to do so - the case at the time - then the citizens can form the militia and supply their own arms)bear arms but if you don't then you don't.

what can be clearer?

Freder Frederson said...

Gun control is about feel good laws that gives legislators something to point to during campaigns. If the laws are evaluated as to their direct effects on gun crime, the actual effects are negligable at best.

The exact same thing can be said about owning a gun for self defense. Most of the supposed benefits are poorly supported by statistics and most of the statistics used to support the theory that "more guns mean less crime" have been shown to be problematic, statistically invalid, or impossible to replicate. no matter how much the originators of the studies purporting to prove such a link try to sue their critics to shut them up.

The oft-cited 2.5 million defensive uses of firearms per years is a ridiculous extrapolation from what amounts to the margin of error in a survey.

Anonymous said...

Don't you have to adopt the collective right view to believe people can be forced to possess fire extinguishers?

I think a smoke detector or a motorcycle helmet would be a better example.

Of course there should be exemptions for people who are opposed to gun ownership. The principle of liberty demands it, regardless of your interpretation of the Second Amendment. (In my humble opinion.)

Anonymous said...

Simon –

Sorry, I’m not a legal scholar; so I don’t see a big distinction between the intended meaning of a writer 230 years ago, and how the words in the document would have been understood at the time….unless the writer was so incompetent that he couldn’t make himself clear to his contemporaries. Since the writers of the constitution all owned guns, had all just taken up arms against the most powerful government in the world with an army of volunteers using mostly their own personal firearms (the most sophisticated and powerful firearms available at the time), I’m pretty sure that the writers of the constitution intended to write something that would be interpreted to mean “you’ll take my flintlock when you pry it from my cold, dead fingers.”

And since this is clearly what they intended, it’s pretty safe to assume that they worded it in a way that their intent would be understood at that time. They just didn’t foresee a day when people would decide that there’s a difference between the intended meaning of a writer, and the actual meaning of his words at the time that he wrote them; and that people would make a game (and cottage industry) out of such semantics, hair-splitting, and divination of meaning in a contextual vacuum.

And as for your comment about strict interpretation, you point out that Scalia doesn’t consider his own interpretation to be strict – he instead thinks that it’s “reasonable”. Well, doesn’t everyone consider themselves to be reasonable? It’s a little like the right highway speed – anyone driving faster than you is a lunatic, and anyone driving slower than you is an asshole, regardless of your actual speed in mph.

Anonymous said...

Hdhouse –

Despite the fact that I’m cheap, tawdry, intellectually lazy, and probably wouldn’t give your argument much thought, I guess I’ll reply. I’ve never encountered much name-calling in the comments section of this blog, and your little snit seems out-of-place.

Between insults, you asked why the framers tossed in the militia reference. In my opinion, (and in the opinion of anyone who knows anything about the personal history of the men that wrote the second amendment and can dispassionately assess their intent with some intellectual honesty), they included the clause “A well regulated militia, being necessary to the security of a free state,…” as a preliminary justification for what was to follow.

That is, an armed citizenry makes a militia (which at the time typically consisted of every able-bodied man who owned his own rifle) possible; and a militia was considered necessary because this was our best defense against any number of possible foes. “The right to keep and bear arms” wasn’t just for deer season, it was to guarantee all of our freedoms; and they wanted to make this point abundantly clear by explicitly stating it so that Bambi-lovers wouldn’t someday decide hunting was outdated and unnecessary, and so are firearms rights. The second amendment had nothing to do with hunting and plinking, and everything to do with national security. And you’re wrong to assume that this is an outdated justification – in every war fought since, and to this day, the fact that we’re a nation of shooters strengthens our military.

Is this an individual right? Of course, this question doesn’t even make sense. Rights only apply to individuals, not governments. If this amendment merely authorized state and local governments to form militias, it would have called it a power, not a right. Governments don’t have rights, they have powers.

So what do you suppose the writers meant with the second half of the second amendment: “…the right of the people to keep and bear arms, shall not be infringed.”

???

The idea that you could “interpret” this one sentence, the second amendment, to mean “local and state governments can form militias, distribute firearms, and then confiscate them after service, and any level of government can ban individual ownership of firearms”, and then call me “intellectually lazy”….wow.

And I’m intellectually lazy because I think that the way to change the constitution is to amend it, rather than by reinterpreting the meanings of the words. Because this would “cut off the need for wisdom and insight in the judiciary”. Um…yeah, I guess if we all agreed that words mean what they meant when they were written, and their meaning does not change, and that agreed-upon and legal means of amending the constitution were to be used to change its content, then I suppose we wouldn’t need the nine gods sitting on high and issuing decrees. Is this a bad thing?

Are you a judge, hdhouse? Or do you aspire to be one? I'm getting a black-robe-and-gavel vibe.

Kirk Parker said...

Steven,

"a militia (which at the time typically consisted of every able-bodied man who owned his own rifle)"

You're almost right here. Hopefully this is not too small a nit to pick, but having just finished Clayton Cramer's latest book, I'm reminded that in most places it wasn' gun owners, but rather every (free) adult male, and sometimes even the non-free ones. Some states had provisions for arming those who were too poor to afford their own rifle or musket--note the implication that poverty is the only justification for this condition! Others actually fined people for not having the required tool of the militia trade.