Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

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November 24, 2007

What’s At Stake In Parker v. D.C.

by Doug Mataconis

Mike Cox writes in the Wall Street Journal about what’s at stake in the D.C. gun control case now before the U.S. Supreme Court. At issue in the case is whether the Second Amendment protects an individual right to keep and bear arms, or whether the right is a “collective” one referring to the states’ right to form militias. With the exception of one Federal Circuit Court of Appeal, the consensus since the 1930s has been that the right is a collective one, thus justifying on a constitutional basis nearly any gun control measure you can think of.

As Cox notes, the language and history of the Bill of Rights clearly indicates otherwise:

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, 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 . . .”

Based on the evidence, arguing that the Second Amendment right is somehow collective, when every other right protected by the Bill of Rights is clearly individual, is not only nonsensical, it is a perversion of history.

Update: As I’ve been reminded, the correct style of the case now before the Supreme Court is District of Columbia v. Heller.

Update #2: I should also note that the article of the Wall Street Journal article excerpted above is the Attorney General for the State of Michigan.

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5 Comments

  1. As others besides me have noted, if the intent was to constitutionalize a state power (the term “collective right” is an insolent oxymoron), then why not simply have the Amendment read: “Congress shall make no law interfering with state militias…”?

    The grammatical rationalizations used to defend the “no individual right” interpretation are, at their core, astoundingly silly.

    Comment by KipEsquire — November 24, 2007 @ 5:46 pm
  2. Kip,

    One could say the same thing about the 5th Amendment’s language about Takings, and look how the Supreme Court screwed that one up.

    Comment by Doug Mataconis — November 25, 2007 @ 4:41 am
  3. “A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed.”

    This statement, an analogy of the second amendment, does not deny illiterate people the right to keep and bear books. The 2A does not deny civilians the right to keep and bear arms.

    The right of every individual to keep and bear arms is balanced by the responsibility to marshal those arms in response to any lawful call to defend our free State. In 21st century English:

    “The right of the people to keep and bear arms shall not be infringed, so that a well-regulated militia can be mustered whenever such muster is deemed necessary to secure a free State.”

    The militia is a potential entity which an armed populace makes possible:

    - The passengers of Flight 93 proved that a well-regulated militia can be formed anywhere at any time.

    - The well-regulated militia of flight attendants Hermis Moutardier and Cristina Jones defended the US against terrorist attack from the Shoe Bomber.

    - As New Orleans residents learned in 2005, there need be no foreign invasion to trigger the lawful need for a militia to guarantee a free State.

    All of these militias successfully secured a free state where the combined law enforcement, security, and military services of several countries, including the US, failed.

    The second amendment calls us all to preparedness. It makes preparedness an imperative, and makes awareness of your duty to be prepared to defend life, liberty and their pursuits your civic responsibility.

    Well-regulated militias of one, background-check approved, trained, responsible, safe, law-abiding, and armed, secure a free state against criminals every day in this country. Though I will never hear about the crimes they prevent, since those crimes never happen, yet, I am grateful for these people, who abide their responsibility, and I thank them.

    I invite you, if you abide yours, to express your wish for the good citizens of our nation’s capital to be allowed to abide theirs.

    Comment by JayDescendant — November 25, 2007 @ 9:44 am
  4. Interesting that I could find no evidence that the NRA tried to fight the DC law previous to this case…..hmmmm?

    Comment by Chris Kachouroff — November 25, 2007 @ 8:55 pm
  5. I worry that Doug’s comment about Kelo is bad omen.

    I have no doubt that the 2nd Amendment protects an individual right. I also have no doubt that for the most part the Constitution has been voided over the past 100 years or so.

    With that in mind, given the chance for the government to decide between individual rights and government control then the government will choose control.

    I have a hunch the DC gun controllers will win. I hope I am wrong.

    Comment by tkc — November 26, 2007 @ 4:41 pm

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