Comments on "E pur si muove!": A Great Day for Individual Freedom

You're being so nice in letting me have the last w...

2008-06-28T17:30:00.000-05:00

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.

Right, I was just wondering how the implicit/expli...

2008-06-27T23:18:00.000-05:00

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!

"q," I thought the way I phrased it was what you ...

2008-06-27T22:16:00.000-05:00

"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.

Sorry, Lester, I'm not quite following your first ...

2008-06-27T18:07:00.000-05:00

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)?

"q," You ask the most interesting questions! I'd...

2008-06-27T17:08:00.000-05:00

"q,"

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.

Ann, my folks first bought a handgun after one nig...

2008-06-27T15:11:00.000-05:00

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.)

Excellent post, as usual, Lester! Your blog defin...

2008-06-27T12:23:00.000-05:00

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," That is a very good question. Since I origin...

2008-06-27T11:33:00.000-05:00

"q,"

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.

Though the "well regulated militia" predicate sur...

2008-06-27T10:02:00.000-05:00

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?