Redstate

By Feddie Posted in Law | Originalism | Second Amendment — Comments (14) / Email this page » / Leave a comment »

Dearest Publius:

While it is true that the "colonial era has passed," the colonial Constitution is still with us. You may recall that "we the people" entered into a compact of sorts vis-a-vis this Constitution, and agreed to certain terms. We also recognized certain natural rights "retained" by the people, some of which were enumerated. One of those rights was to right to "bear arms." And while I understand that you and others like to think that there is a case to be made for viewing the Second Amendment as a collective-based right (i.e., that the people only have the right to own guns as members of a militia), no legal scholar worth his salt really believes that to be the case. Heck, even Larry Tribe has conceded the obvious. But why take his word for it. Let's see what Justice Joseph Story has to say on the matter, shall we?:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

If you're really interested in delving into the original understanding of the Second Amendment, you can, of course, read the D.C. Circuit Court's marvelous majority opinion in Heller (or the corresponding Supreme Court briefs), but I think you and I both know how the evidence stacks up.

But as you concede, this really isn't about law; it's about policy.

You also use your post to make a broader point:

And that leads to one of my broader criticisms of American conservatism -- from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life -- and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well.

To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.

Your point, of course, leads me to my broader criticism of penumbra lovers. The legal left has never come to terms with the fact that we have a Constitution that has a static meaning; one that is fixed in time except to the extent that meaning is changed by way of a constitutional amendment. It may very well be that "modernity" requires us to rethink some constitutional provisions, perhaps even the Second Amendment. And that is exactly why the framers/founders provided us with a little thing I like to call "Article V."

You see Publius, I don't have a problem with your opposition to the original meaning of the Second Amendment on policy grounds. That's cool by me. We can still drink bourbon together, and discuss how wrongheaded your worldview is on just about everything. No. What troubles me is that you and other liberals believe that the policy goals you desire can and should be accomplished in a countermajoritarian fashion (i.e., by judicial fiat).

I also find it interesting that when my liberals friends are confronted with a constitutional provision they don't approve of on policy grounds, like say the Second Amendment, they all of the sudden become enchanted with federalism, and start singing "it takes different strokes to rule the world." But you see, every so often, dear Publius, that ol' incorporation doctrine can come back to bite you in the arse.

One other thought before I conclude. Let's say, for the sake of a Supreme Court Fantasy League, that Publius is right, and that the collective-right view of the Second Amendment is indeed plausible. Let's also say that this is the understanding of the amendment adopted by the Supreme Court in Heller. Then what?

Does this mean that I and other citizens have a constitutional right to form a militia like those that existed during the colonial age? One independent of the State hierarchy or its control? Because if that's the case, then I am definitely down with that. I strongly suspect, however, that this understanding of the Second Amendment would also be frowned upon by our liberal friends. "Times are different. Ignore the text of the Constitution. Blah. Blah. Blah."

But surely our liberal friends are not suggesting that the Second Amendment is superfluous. But if not, then what rights do they believe the Second Amendment affords Americans?

[Cue crickets chirping]

*Oh, and fwiw Publius, I do agree with you that the HBO series on John Adams is most excellent.

Update: Publius responds in an update to his original post. In a nutshell, he sticks to his belief that there remains "a indeterminacy problem" with the Second Amendment. I respectfully dissent from this viewpoint. When one considers the text, history, and structure of the Second Amendment, there can be no question but that the amendment was meant to recognize and protect an individual right to bear arms.

Oh, and Publius, I am still waiting for your response to my question as to the impact/application of a collective-right interpretation of the Second Amendment. What would this mean for Americans as a practical matter? I know how keen you are on consequences, so I am curious as to how one would be able to exercise his Second Amendment rights if those rights were collective, rather than individually held. Would such an interpretation permit Americans to form local militia groups that operate independently from the federal or state governments? I am just curious whether you and other legal liberals are taking the "ink blot" approach to the Second Amendment.

(cross-posted at Southern Appeal)