Second Amendment in DC

Yes, Virginia (sic), it exists.

Zathras suckered me into talking about this one, so here goes:  the case was a no-brainer.

Why is it a no-brianer?  Well, because there is no such thing as collective rights.  I’ll believe that there are collective rights when somebody can show me that there’s such a thing as a collective human being.  Here’s two things you’ll never see:

1.  A girl saying to her parents “Mom, can my community have a pony for Christmas?”

2.  A rail-thin guy at a soup kitchen turning down food, because collectively, everybody is being fed.

Our government isn’t built on nothing but Locke, but if you agree with Locke on a simple premise or two, as did nearly everybody in America at the time of the Founding…

1.  Government is a contract amongst the people in order to secure their lives and rights.

2.  People have God-given rights simply by virtue of being people.

Then it doesn’t matter why Madison & Co. thought that the right to bear arms (granted by God, since government-given rights are properly known as priveleges) should not be contravened by Congress.  D.C. is and has been using regulation to consciously trample over peoples’ rights to bear arms for a long, long time now.

Am I surprised that lawyers would find this controversial?  Nope.   Lawyers are a very different sort, and think differently than regular people do.  (Ask one, he’ll be proud to tell you!)

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19 Comments

  1. Amen to that. That’s what’s wrong with Das Capital (well, that and the stupid idea that industrialization was a one-shot process not requiring continuous reinvestment), Marx, and most San Franciscans in general. The common good does exist, but all rights AND RESPONSIBILITIES are individual in nature.

    Hmmph.

    Reply
  2. Now I’ll present the other side of the story.

    Our government is not monolithic, but it exists on many scales. We have federal, state, county, city, and a few other levels. The different levels have different responsibilities and powers. A community right, rather than an individual right, deals with freedom from interference from an entity higher up in the chain. For example, the state of Texas has the right to have a militia and the right not to have federal agents break into the state treasury and haul out the contents. Those are community rights.

    It is the mention of the militia in the Second Amendment that gives this right its distinctively collective interpretation not given to other Amendments. The Revolution was not ever really fought solely by individuals, but instead by colonial militias which were organized and armed by colonial assemblies. The best present day example of this setup is Switzerland, which has the entire male citizenry organized as a militia. Because of this organization, gun rights in Switzerland are probably best viewed as a community right, rather than an individual right.

    That being said, I do think that the critics of Parker are wrong to assume the right to bear arms is entirely a community right, and I do think the DC court got Parker right. However, there is a community right aspect to the Second Amendment that cannot be ignored either.

    Reply
  3. happycrow

     /  March 13, 2007

    “A community right, rather than an individual right, deals with freedom from interference from an entity higher up in the chain.”

    Which is a fancy way of saying that all rights are communal rights, since by definition people are at the bottom of said chain… I don’t mind you disagreeing on this, but in my ears those arguments are nothing but Newspeak.

    Reply
  4. The founders understood that if the local people were not armed (and all of them were) then making local militias out of them would be as useful as tits on a bull. The reason for the second amendment was that the people remembered several attempts by the British army to get the colonists to hand over their weapons, the most notable example occured in the Carolinas by the notorious Bannister Tarleton. He threatened to burn to the ground any village in which people kept their fire-arms. The result was that the locals were so angry that the ‘mountain people’ there went to a place called Anderson’s Return and promised each other that they would continue to meet at that spot every year until the Brits were driven out.

    The Battle of King’s Mountain was the ultimate result of the British arrogance and the bloody end to Tarleton.

    There is no doubt at all that in their minds, a local militia could only mean the right of the individuals to keep and bear arms. The only effort at stockpiling arms was for the express use of the Continental Army, funded through the Continental Congress and directed by Congressionally appointed generals. Most of the fighting was made by these official organizations, and they were abetted by the local militias that would volunteer for set periods of time to use their own guns, horses, clothing and any food that they could bring to fight for the cause.

    The Amendments were added to the Constitution because there was fear that *either* the federal government *or* local governments would attempt to make laws that would abridge those same rights that Russ mentioned earlier. If Colorado were to attempt a law re-instating the legal mechanism of slavery, for example, the Constitution trumps that law. That has not anything to do with the community. It has everything to do with protecting the individual from being placed in slavery, no matter what community they may happen to be living in.

    If a local community makes a law that says that it is illegal to carry a weapon in the streets, it has been decided by the courts that communities may, in fact, do so because that in itself does not nullify the right to keep and bear arms. It just means that you can’t go packing your hog-leg around town in the interests of keeping the peace. The point is that the Constitution is in place to protect the individual from having his/her rights stripped either from ‘above’ or ‘below’ in the chain of governance.

    Reply
  5. Not to mention that Madison was real clever, and didn’t discuss states’ rights in the BoR, for the same reason that he didn’t jump on-board the Nullification Doctrine inside Jefferson’s Kentucky Resolves…

    Reply
  6. That was a sticky wicket, no doubt.

    Reply
  7. Returning to my point you ignored, the state of Texas has rights as against the US. If calling thee communal rights puts your knickers in a twist, what would you call it?

    I also have no idea why you think the existence of a hierarchy of communal rights negates the existence of individual rights.

    To say Locke negates the existence of communal rights is a gross misreading. There are different levels of the social contract, with different rights conferred at each level.

    The Bill of Rights does not deal with state rights? States rights are dealt with explicitly in the 2nd and 10th amendments, and implicitly in most of the other amendments (since it puts restrictions on the federal government while being silent on the state government).

    Reply
  8. Ok, Zathras, point taken.

    You pointed out that the 2nd amendment was all about the usage of local militias. All I pointed out was the mechanism that made a local militia in any way useful. It was implicitly understood that a local militia had to have people show up that already had the means to defend themselves, along with any other means that they could bring along.

    Explain what you mean by a hierarchy of rights. If the city of Plano decides that they can take the local national guard and force people to house them, is that a community right, or is that a protection of the individual? My bet is that the Federal Gov’t is all over that, never mind what the Texas Constitution may have to say. I also bet that it would be individuals bringing the lawsuits and not the State of Texas.

    I guess what bothers me about that line of reasoning is that the individual States cannot make laws that abridge the rights detailed in the US Constitution. There is nothing there that says that the US Federal Government has the right to take away any state’s treasury. The Texas Constitution has that in there because during reconstruction the feds DID take money from the treasury.

    I am a big believer in state’s rights, but I do not think that it is legal for Hawaii, or any other state, to make a law that an individual cannot have the right of Habeus Corpus, for example.

    Reply
  9. Alex

     /  March 13, 2007

    So who protects the individual when the majority militia decides the individual must go because they’re an outcast or “the enemy”? One man’s militia is another man’s lynch mob – which is why I fully want well trained level headed people with guns, not every Tom, Dick and Jane. Does the government step in and take away the guns of those who can’t be trusted with them, and what if the government is wrong and doing basically what started the 2nd amendment in the first place (i.e. the above comments on the American Revolution).

    Now shooting a hole in my own argument (figuratively, not literally) so who decides who is level headed and who isn’t? I guess everyone better go out and get a gun because you don’t know if you can trust everyone else with your “individual” rights. Sounds like the times before the idea of Government doesn’t it? You’ve got to place trust somewhere and to some extent the masses gave up some of those self-protection rights in return for a well-organized military and police force that protects us.

    Therefore I have very mixed feelings about the 2nd amendment and the ability of local areas to abridge it or regulate it. Sometimes I think it is in the best interest of the individual to go ahead and let those arms be strictly controlled, and other times…I think it’s perfectly reasonable to own them personally for home defense/hunting/collecting. To say which is right and which is wrong solely on individual vs. community rights simplifies the argument too much – both are important and ultimately both must compromise to find harmony and co-existence and ensure a stable society.

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  10. Mike

     /  March 13, 2007

    I need to correct a historical error. Kings Mountain (neat place to visit by the way) was the end of Major Patrick Fergiston (Fergeson? damn I can’t remember how to spell his last name) and 900 Tories. Tarleton’s defeat was the Battle of Cowpens by Daniel Morgan. Tarleton survived and served to the end of the war and then returned to England. Major F. was shot dead by a “Over the Mountain Man” at Kings Mountain.

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  11. Mike

     /  March 13, 2007

    For me its a degree of what constitutes “arms”. I have no issues with weapons that are for home defense or hunting (simple rifles, pistols and shotguns), but “arms” in the sense that they were defined back then were military capable weapons (i.e. muskets and rifles), which is why we have some idiots arguing that the 2nd Amendment covers things like automatic weapons and machine guns. It’s the common sense factor that in so many cases seems to be lacking on both sides (the NRA defending kevlar piercing bullets and the “assault weapon” ban are prime examples of dual stupidity). I think this ruling addresses a key common sense one in spelling out who exactly we aare talking about in regards to the Amendment (loose interpretation which is militia meaning every able-bodied citizen).

    Reply
  12. Happycrow

     /  March 13, 2007

    Yes, but in that process, Zathras, your definition is spinning the field, because the construction typically used is “collective rights,” (not *communal* as you’ve used it), which inherently supposes that the right begins and ends at the level of the state. But the BoR is intentionally silent on states’ rights.

    Therefore, the notion that the 2nd amendment has to do with “communal” rights as you’ve posited them inherently places said definition into really creaky ground, unless, as James has also asked, that you explain your hierarchy, because without some exculpatory definition, as you’ve put it the rights mentioned in the First Amendment are ALSO a community rights… not likely to be a popular notion.

    Reply
  13. James:
    “You pointed out that the 2nd amendment was all about the usage of local militias”

    No, i just said that it partially about the use of militias-to say otherwise would render half of the Second Amendment meaningless. Just a clarification.

    “Explain what you mean by a hierarchy of rights.”

    It’s not really a hierarchy of rights, more of a difference between holders to rights. In the formation of a government, according to Locke, some rights are retained and some rights are surrendered. The formation of the federal government (which was at least as much a compact between states as between individuals) had the states surrender some rights (can’t have treaties w/foreign nations), yet retain certain rights (such as the rights I mentioned before). The types of rights retained by the states are not in general the same as the rights retained by the people. That’s what I meant as community rights (or communal rights–didn’t mean any distinction there). That’s all I meant.

    It should be mentioned here that the 14th Amendment fundamentally changed the balance of power between the states and the federal government. It is because of the 14th Amendment that the 1st Amendment, for example, has any applicability to state laws. In the law, this change is considered so fundamental that many talk about the “Constitution of 1868” as there are very few part of the Constitution not affected by these changes.

    HC: ““collective rights,” (not *communal* as you’ve used it), which inherently supposes that the right begins and ends at the level of the state.”
    The mention of the militia in the 2nd Amendment make it unique in the Bill of Rights by referring to an entity of a state government. Again, this is not to say that this makes the 2nd Amendment entirely a community right, but that is an important component which cannot be ignored.

    “But the BoR is intentionally silent on states’ rights.”

    Again, not true–see what I said above.

    Reply
  14. happycrow

     /  March 14, 2007

    Okay, I disagree with you on the states issue (militias were also formed as part of federal operations, c.f. Blue Jacket’s War), but I can see where you’re coming from.

    Totally agreed on the 14th Amendment… though it’s not like the Supreme Court has ever done anything but stick its ass in the air and wave a white flag whenever Congress trashes the 1st Amendment in the first place (Sedition Acts, McCain-Feingold, etc. etc.)

    Reply
  15. Mike…you are of course correct…….Since Ferguson and Tarleton were together until King’s Mountain I totally brain-farted on that one.One of my ancestors (Anderson) was an “over the mountain man”, so it was a piece of ‘family’ lore, but obviously old age is catching up with my brain cells…..

    One note that the LIbertarian in me wants to bring up is that of course they were talking about military-grade weapons. I think that one reason the founders wrote that in is to keep the Feds honest, but many things have happened since that time. There are not nearly as many Comanche raids into settlements anymore, for example, so maybe it can be argued that the need for military grade weapons has lessened. (sigh) I *did* want a grenade launcher, though…..

    Reply
  16. happycrow

     /  March 14, 2007

    Well, let me put it this way: we have the weapons to defend the US from enemies foreign or domestic, which may be, say, the PRC, and may be a dictator in the White House. c.f. Milosevic, who’d have been out of power ten years earlier if the Serb civilians had possessed any bullets.

    Meanwhile, I own a LOT of weapons. If I haven’t shot anybody with my firearms, and haven’t lopped an arm off anybody with my swords or axes, and in fact haven’t killed anything lately except a dangerously diseased possum, what does it matter whether or not I happen to have an M-203 in the closet or an 80mm mortar in the attic?

    Reply
  17. Mike

     /  March 14, 2007

    True enough, but I have found that people who actually own those things are never dumb enough to sell them to crooks or use them to make their own private Idaho and therefore never really have an issue with the ATF doing periodic checks on them. I have no grief with that when it comes down it (the idea of someone aside from me owning a mortar makes me a bit nervous, unless they are stable folks, and stable folks understand that others are nervous so a periodic checkup by the law isn’t a big deal).

    I do have issues with the ATF in general (they should be absorbed by another agency in my opinion), but not with some of what they do which is keeping the honest folks honest in the eyes of people who get nervous. Now, you start on with me about how my granddad’s M-1 carbine from WWII needs to be confiscated becuase it had a bayonnet lug and has a large clip capacity and we have issues. About a mortar or rocket launcher? Okay, that I can see.

    Reply
  18. Russ

     /  March 14, 2007

    I have no problems with how class-III weapons are regulated. The Brady bill and Son-of-Brady, otoh, is simply stupid. Why are we encouraging the bad guys to learn what a sight picture is again? I missed that logic…

    Reply
  19. Mike

     /  March 14, 2007

    Because to the people at Brady and Co. guns are evil, intelligent snakes that unless destroyed will jump into innocent peoples hands, drive them crazy with bloodlust and cause them to go on a 3 state killing spree. I swear some of these folks get apolexy just looking at a gun.

    Reply

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