Look Ma! I Wrote a Heller Post!

I haven't said anything about District of Columbia v. Heller because (a) I follow First Amendment issues much more closely than Second Amendment ones, and (b) I'd just be meekly bleating in a choir of some pretty strong singers.

But reading up on the case via one of my favorite blogs, I stumbled upon this compelling argument by commenter JimSax, who tackles the now-settled question of whether the Second Amendment bestows an individual or a collective right. Thought I'd pass it on.

In discussions with people who claim that the Second Amendment protects a “collective right,” I’ve sometimes posited the following thought experiment. What if the First Amendment were rewritten in terms of the Second Amendment? “A well-educated citizenry being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.” No one would mistake it for a “collective right.” No one — except the most blatant would-be censors — would insist that it protected only the rights of the well-educated to own books, or that it protected merely the right to join a state-sponsored library.

If I were a judge, I'd get to write "I concur." As it is, a hearty "right on" will have to do.

Comments

[RWW]

No one would mistake it for a “collective right.”

I think you're giving most people way too much credit.

[Wulf]

Unfortunately, a savvy gun control advocate would use this argument to their advantage. They would say that since the clause in question does exist in the Second Amendment but not in the First, the two rights in question were clearly thought of differently by the Founders.

I don't like to shamlessly self-plug, but I recently tried to address the "collective right" crowd with some good questions posted over at Atlas Blogged, and I encourage you to come on over and read them. I've not received any answers, and I would love to spread the questions farther and wider until I get some reasonable attempt at a response.

[Nicolas Eyle]

This Constitutional law question has always mystified me. The phrase "the people" , used often in the Constitution, is argued by some when it appears in the Second Amendment, to refer to some sort of government organized group - a militia, and not to individuals.
Does this mean that the right of "the people" to, for example, assemble peaceably (1st. Amendment) only applies to official state-sponsored gatherings? Of course not.
The right of "the people" to ______, is clearly an indidual right everywhere in the Constitution. Why claim it's something else in the 2ond Amendment?

[McDuff]

Why do people argue it? Because they are of the opinion that not everything contained in an 18th century legal document is absolutely applicable to 21st century life, while also realising that arguing either that America's fetishisation of its constitution or of the 2nd Amendment in particular is outdated is one of those arguments that's outside the political pale because, well, because we said so, and we are the gatekeepers of what is and is not polite discourse.

Results-based theories of constitutional law are, of course, all we've got left, pseudo-labels of Originalism or Textualism notwithstanding. Not to denigrate the greatness of the constitution, but the further we move away from the signing and the more we try to argue what the founders would have thought about downloading genetically-modified pig-hearts into our own spines over the internet and how much the government could monitor those transactions via satellites, the more convoluted all constitutional arguments are going to get and the closer it gets to being a religion with its own Holy Texts and schizmatic schools of thought than to a working system of law.

The 2nd Amendment is simply one of the more irrationally fetishised, and the most irrelevant to actual consolidation of elite power, which is why the Church Of Reaganites have no problem expanding its reach even while they limit the power of the 1st, the 4th, 6th, 8th... and, well, you've all been watching for the past 8 years.

While having no opinion on what absolutes should be in place - other than that DC != Rural Alabama and that local legislatures in both places should be able to take that into account - I just think the 2nd Amendment has been an almighty gift of a distraction to those who want to fuck with our protections from the genuine threats we face from government.