Thursday, June 26, 2008

A Great Day for Individual Freedom

The U. S. Constitution is not perfect, but it's a lot better than what we have now.
-- Durk Pearson

Today the Supreme Court, in the historic decision in D. C. et al v. Heller, explicitly held that the Second Amendment grants the right to own a gun to individual human beings.

Of particular interest: The District of Columbia ordinance was struck down because it a) made it virtually impossible to own a gun and b) because it required that the few guns that were allowed have trigger locks or be disassembled. The Court specifically said that this is wrong because it renders the guns useless for purposes of self-defense. In other words, you have a constitutional right to self-defense. The D. C. ordinance disarmed its citizens against violent attack, and was meant to do so. This they may not do.

The Amendment reads (in the copies originally circulated to the states for ratification):

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

For many years those of us who thought that this language does grant an individual right felt as if we were required, in defending our interpretation, to prove that water really does run downhill, and that black is not white. How could anyone seriously think that "You have right R because it serves purpose P" means "You have a right to serve purpose P"? How could they have thought that "This right is important because militias are important" means "This right belongs to you as a member of a militia?"

That, as you probably know, is the interpretation used in anti-gun jurisprudence. I have been reading Scalia's majority decision in this case and the attack he launches against this interpretation seems devastating to me. (Of course, I am on his side on this one, so you can take that with a grain of salt I suppose. )* I don't always agree with Scalia, God knows, but when this guy is good, he's great.

Added later:

Among the arguments Scalia gives that I had not thought of: "Virtually all interpreters of the Second Amendment during the century after its enactment interpreted the amendment as we do" (p. 32). The collective right interpretation took root long after the document was written.

Here's another historical argument. It's one I've never seen presented in quite this way, but it has always made sense to me.

I have always thought that the fact that the amendment mentions the militias is actually evidence for the individual rights interpretation. What after all were the militias? They were not government bureaus, like a modern police force. They were private citizens, banded together for common defense and the maintenance of order. Daniel Boorstin, in The Americans: The Colonial Experience [(New York: Vintage, 1958), pp. 352-72], tells the interesting tale of this -- to us -- curious institution. The most curious thing about it, on Boorstin's telling, was how popular the idea of a militia was to the founders: they even mention it in the constitution. The thing is that militias were never very effective. They were poorly disciplined and difficult to coordinate, and desertion rates were astronomical. A modern police force or the regular army makes much more sense in military or administrative terms.

So why did the founders like them so much? The answer, Boorstin says, can be found, not in the realm practical military considerations, but in that of ethical and political ideals. To the people who founded this country, the idea that security and order should be a gift of the state, that the individual should be the passive recipient of state-provided protection, was a very troubling one. They favored the inefficient and impractical militia system because they wanted private citizens to possess lethal force and be ready to use it against their fellow human beings. They wanted the individual to have real power.

The collective right interpretation of the second amendment assumes that individual gun ownership was a mere means and the militias were the end. In fact, virtually the reverse is true: the militias were a means, and individual possession of lethal force was the end. More exactly, individual gun ownership was an end in relation to the militias. And it was an end because it served the deeper end of the dignity, power, and independence of the individual citizen.

According to the collective right view, the second amendment is a sort of legal ghost town: since the militias no longer exist, there is no possible point to a right to have a gun. I say that, when we see the real point, it is one that is applicable today, just as it was then, though in a different institutional environment.

To put it another way: even if the founders had only meant to guarantee us a right to belong to a militia then, given that the militias no longer exist, the right ought to "evolve" as part of "the living Constitution," into an individual right. That would be far more in the spirit of what the document meant than to allow the disarming of the citizenry.
* I realized several days after writing this that I am probably one of the signers of one of the amicus briefs in this case, the one submitted by Academics for the Second Amendment. I should have mentioned that.


"Q" the Enchanter said...

Though the "well regulated militia" predicate sure seems on its face to condition the existence of the right conveyed in some way, what interests me is more socio-psychological: What makes this right so special in the first place?

I like guns. I know plenty of people who own guns and enjoy hunting, and I totally get it. What I don't get is the nigh devotional attitude gun rights activists take toward the right, such as it is. Why is this? Is it the prospect of a mass invasion of the U.S. after the style of Red Dawn? Is it the specter of the tyranny by our own government? If either is the case, how is a right to own the 21st century equivalent of musket or blunderbuss supposed to be availing?

Personally, I'd think the "privilege" to drive (say) is far more important to contemporary citizens than the right to own guns of various sorts. (If the constitution were drafted today, a right to drive would be far higher on my list!) What am I missing?

Lester Hunt said...


That is a very good question. Since I originally wrote this post, I added a few paragraphs that are meant to answer it. As you have probably guessed, the issue isn't hunting. It's not about shooting ruffed grouse. It's about shooting people.

It's about a (small "r") republican tradition that goes back to the eighteenth century and indeed back to antiquity (eg., Sparta).

Like you, I am of at least two minds about this. I'm not really part of this tradition myself. Until I recently inherited my dad's old S & W service revolver, I never owned a gun. Intellectually, though, I do see a large element of truth in this tradition.

Ann said...

Excellent post, as usual, Lester! Your blog definitely increases the signal-to-noise ratio of the blogosphere. I think you are spot on - The 2nd Amendment guarantees the individual's right to protect one's existence in the face of aggression, either from another individual or from a state. 'Q', I live in Massachusetts, and we are told (as I understand people are told in Maryland and perhaps other states as well) that if you have a home invasion you should not 'do anything' you should call the authorities, dial 911. People have been sued for injuring or killing home invaders. To me, that is a perfect and chilling example of the state 'castrating' (is there a better word here?) the power of the individual. If someone breaks into my house in the middle of the night, I should wait for a trained member of the bureaucracy to determine the outcome for me and my loved ones? I truly fear for people for whom that choice has become the only acceptable one.

"Q" the Enchanter said...

Ann, my folks first bought a handgun after one night in Miami, when my mom woke up in their hotel room with an intruder inside. So I relate to the idea of having a gun to protect yourself, and as a matter of policy I would want anyone who can pass a background check and a gun-safety course to be able to purchase a handgun for self-defense, at the very least. (I can't comment on the anti-self-defense propaganda of the Massachusetts bureaucracy. I'd be curious to read their actual materials, if you have a link to a primary source.)

Lester, If I say to you, "A ride being necessary to get your wife to the hospital safely, you can use my car," I am surely not thereby giving you permission to take my car for a joyride. I think the most natural interpretation (which is not to say the only interpretation) of my statement of the privilege conferred is that I conditioned it on a certain exigency. Do you disagree?

(Does the distinction between a privilege and a right -- assuming it's a coherent one -- matter here? I don't think so. What is common in either case is that the nature and scope of a liberty is being delineated, and whether the liberty in question is a privilege or a right doesn't affect whether or not it is at least arguably conditional in form.)

Lester Hunt said...


You ask the most interesting questions! I'd say if you loan me your car and said "to drive your wife to the hospital," you were explicitly granting me only a right to pursue P by exercising R. I think this is a useful example because that is just what the collective right interpretation amounts to -- that the constitution is granting this sort of right, not explicitly but implicitly. For my money, it brings out just how odd that interpretation is.

The rights/privilege question is potentially vast, since both concepts have so many dimensions. One thing I would agree with is that in one way a right to own a gun should be treated like the right to drive: both should have what is sometimes known in the literature as a "dangerous user exception." If my exercising a right presents (too much of?) a danger to others, they may coercively prevent me from exercising it.

"Q" the Enchanter said...

Sorry, Lester, I'm not quite following your first paragraph. Are you saying that if I'd rephrased the way you did, then the license (I'll call it, just to abstract away the right/privilege distinction) I thereby gave you to drive your wife to the hospital would have been explicit (whereas the way I originally phrased it made the license only implicit)?

Lester Hunt said...

"q," I thought the way I phrased it was what you had in mind. Though come to think of it, you probably had in mind something that would be a crystal clear, though merely implicit, granting of a license to do a specific thing. Which I suppose is how it would happen in real life. "Oh my God! Jane is in labor! What'll we do!?" "Oh, take my car. Here are the keys." This "take my car" clearly grants a license to to do one specific thing (and anything that is a reasonable means to it) with the car.

"Q" the Enchanter said...

Right, I was just wondering how the implicit/explicit talk was supposed to link up with the individual/collective rights argument.

Anyway, I appealed to this sort of "real life" case study because as justices ascend the ladder of abstraction it becomes easier and easier for them to divorce themselves (or, more likely and importantly, their audience) from the kinds of things that language actually does. What I tried to show with my example is that it is unnatural to render a prefatory clause of that form as pure surplusage.

Having just finished skimming Heller, here's how I'd describe the situation. The Second Amendment on its face contemplates a right conditioned on the exigencies of the militia system (much in the same way my permission to use my car was conditioned on the exigencies of health). The right to self-defense (which was Ann's concern, above), on the other hand, which is a conceptually distinct right, was (as is fairly well-known to many first year crim law and torts students) a right at common law; if self-defense had been what the justices had in mind, then, they certainly could have mentioned it. They didn't, and that omission should probably further guide the interpretation of the relevant language.

Now, even without the Second Amendment, the right to self-defense is arguably vindicable modernly as a constitutional right under the Ninth Amendment. The problem for the conservative justices is that they are generally averse (not without understandable reason) to the extreme flexibility a Ninth Amendment approach would give justices and lower judges in vindicating claims of right where the asserted right is unenumerated.

Their solution: Locate the right to self-defense in the Second Amendment (under color of originalism, naturally).

Of course much more should be said, but it is customary in blog comments to be glib when possible, which custom, out of convenience, I'll now duly observe, leaving the last word to you, Lester, if you'd like it.

"Q" out!

Lester Hunt said...

You're being so nice in letting me have the last word that I'll just say one half-way-nice thing myself: I love the 9th amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And I love it for the very reason (you say) conservatives don't like it. As you say, it is flexible, though only (I would add) in one direction: in favor of the individual and against the government.