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Thoughts on Heller, Collective Rights

June 30th, 2008

There has been a lot of good commentary on the Supreme Court’s recent ruling in Heller. I have to admit that I was not following the case because I wasn’t terribly optimistic about the Court’s ability to strike a blow against tyranny. I was wrong (sort of).

As a libertarian, I’d be remiss if I neglected to comment on the ruling, so let’s review. The ruling affirms an individual right

The Second Amendment, Scalia said, “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

This conclusion makes a nice sound-bite, but it kinda leaves you hanging, doesn’t it? Individuals have a constitutionally protected right to defend themselves, from whom?

My standard response, of course, is that “people need to be protected from the government.”

Don’t jump so quickly to conclusions, some chide:

Mark Tushnet, a Harvard law professor who recently wrote a book about the Second Amendment, said the debate “showed why lawyers shouldn’t be historians,” noting that Scalia and Stevens each wrote as though “there’s only one way to view what happened in 1791.”

Well, there may be more that one way to view what happened in 1791, but the reality is that there is only one way that those events actually transpired. Viz., you can look at history through whatever colored glasses you’d like, but that doesn’t change the facts of reality; history only actually happened one way.

The Revolution was for all intents and purposes, an act of treason against the Crown, and one interpretation is that the Founders wanted to enshrine in the constitution of their government-to-be, the right of the people to protect themselves from their own government by force, if necessary.

A Constitution of government (including amendments incorporated therein), is allegedly a compact between men and the government. It says to the men: your government may do A,B and C, but it may not do X,Y, or Z. If the people, jointly or severally, are dispossessed of the ability to enforce this alleged compact, then the government can do whatever it damn pleases.  If the government can do whatever it pleases, there was no need to make pretense of a compact, as evidenced by a Constitution.

It was as obvious to Spooner who writes more forcefully than yours truly:

[T]he object of all bills of rights is to assert the rights of individuals and the people,as against the government, and not as against private persons. It would be a matter of ridiculous supererogation … [I]t would be unnecessary and silly indeed to assert, in a constitution of government, the natural right of individuals to protect their property against thieves and robbers…The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government.

In practice, of course, a government never recognizes the rights of its people to overthrow it, but it sure looks just and equitable and good on a piece of parchment.

For further analysis, in The Founders and Firearms, Stephen P. Holbrook deconstructs the etymology of the Second Amendment, and notes:

During most of our history an exhaustive analysis of the Second Amendment would never have been necessary. The meaning of each word would have been obvious to citizens of the time…

It was only in the late 20th century that an Orwellian view of the Second Amendment gained currency. Within this distorted language prism “the people” would come to mean the states or state-conscripted militia; “right” would mean governmental power; “keep” would no longer entail custody for security or preservation; “bear” would not mean carry; “arms” would not include ordinary handguns and rifles, and “infringe” would not include prohibition.

I wrote a paper to this effect (second amendment) in my Sophomore year of college. The English Professor gave me a D on the paper, because I “didn’t present both sides of the argument.” It was a research paper. Apparently she did not know the difference between a college-level research paper and a junior-high-school-level “compare and contrast” paper.

I told her “This is a research paper, my topic is the meaning of the Second Amendment, my topic is not the debate surrounding the Second Amendment.” In a nutshell, my research did not turn up anything that could be used to construe any other meaning—and after she sent me packing with that “D” and asked me to re-write the paper, you better believe that I tried to find something, anything.

But. It. Didn’t. Exist.

I resubmitted the same paper, with a one-page disclaimer, and accepted my “D”.

On this note, Wulf asks:

I am begging for anybody who believes that the Second Amendment addresses a collective right to explain their position.

I’ll tell you Wulf, it’s not that I haven’t heard a convincing explanation for the “collective right” version. I haven’t heard any argument for the collective right version that isn’t simply, “Well, it’s not an individual right, but since I can’t deny its existence, I’ll call it a collective right.”

In my estimation, people argue for the “collective right” version of 2A, simply because it’s convenient. If it were up to them, they’d probably argue that the Second Amendment doesn’t exist. But it does. So making up some fairy tale about a collective right is an easy way to acknowledge it, while basically dismissing it in entirety. The “collective rights” explanation simply doesn’t exist.

Am I satisfied with the outcome of Heller?  It’s better than the alternative, I suppose.  I’m certainly not satisfied with the fact that we rely on a government court to determine what are our rights. And, I’m still cautiously pessimistic,there’s a lot for which it’s probably too early to tell.

no third solution

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