Debate Magazine

Hurdles the "individual Right" Interpretation of the Second Amendment Needs to Overcome

Posted on the 18 November 2011 by Mikeb302000
Hurdles the "individual right" interpretation of the Second Amendment needs to overcome (in no particular order):
The first that comes to mind is that there is no explicit language granting such a right. The text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. Courts must presume that a legislature says in a statute what it means and means what it says in a statute. We this analog to the Second Amendment that demonstrates what this means:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power
orA person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.
The people shall have a right to bear arms, for the defense of themselves and the State.
Note that a personal right is specifically mentioned in the above texts, whereas it is not in the Second Amendment to the US constitution.
Next, it is presumed that a an act of legislation will be interpreted so as to be internally consistent. A particular section statute shall not be divorced from the rest of the act. That means that other sections addressing the militia from the Constitution need to be added to the interpretation of the Second Amendment.
Additionally, Every part of a legislative act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary.
In short, we must find our meaning in the text, not outside of it. We can also look for further guidance in the Constitution since the Second Amendment must be read within the framework of the constitution. However, a search of the Constitutional text will find that one constitutional purpose is to "provide for the common defence" and you don't have to read to far into the Constitution to find that stated. Nowhere is self-defence mentioned in the US Constitution.
Not to mention that the doctrine of self-defence did not allow for armed self-defence in all cases, but required only the reasonable amount of force to counter the threat. Additionally, there was a duty to retreat at the time the Constitution was written. To argue that the Founders intended that armed defence was an option without specifically mentioning it is a further absurdity.
Blackstone stated that, although the words of an enacting clause were 'generally to be understood in their usual and most known signification,' yet if its words, after due analysis, were 'still dubious' or 'ambiguous, equivocal, or intricate,' one might look to the context, which included 'the proeme, or preamble, [which] is often called in to help the construction of an act of parliament.' (1 Blackstone at 59-60).
Additional help can be found from Blackstone regarding the "proeme, or preamble" is part of a larger section that consists of "observations concerning the interpretation of laws." 1 Blackstone at *58. One of those "observations" was: "BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it." 1 Blackstone at *61.
Blackstone refers to this "when the reason ceases, the law ought to cease" principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting "But here the reasons of the general rule cease, and 'cessante ratione cessat et ipsa lex' [The reason of the law ceasing, the law itself also ceases]"), 3 Blackstone at *219 (discussing the law of nuisance, and noting "But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water."), 4 Blackstone at *3 (noting that some aspects of Britain's criminal law "seem to want revision and amendment" and explaining that "These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . "), 4 Blackstone at *81 (discussing the law of treason, and noting that the "plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . ."), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting "But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex."). Someone said that the proeme could be read as starting with Because. Which means a better way of reading this is Because a well regulated militia is necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
All that means any attempt to say that the "proeme" is in anyway meaningless (as happened in Heller) renders the Second Amendment meaningless. That is the paradox of the "individual right" interpretation.
Next, we come to the historic role of the militia in relation to a citizen of a republic's civic duties. I've mentioned this before, but...
Americans inherited the concept of Civic republicanism from seventeenth century English "Commonwealthmen". This concept was a primary ideological value driving the American Revolution and the framing of the Constitution. Historian Gordon Wood writes that "[r]epublicanism meant more for Americans than simply the elimination of a king and the institution of an elective system. This concept added a moral dimension and utopian aspect to the political separation from England--an aspect that involved the very character of their society."
The classical liberal tradition gave the independence movement its values and concepts with which we have grown familiar. The most important of which was a civic and patriot ideal in which the personality was founded in property, perfected in citizenship but perpetually threatened by corruption; government figuring paradoxically as the principle source of corruption and operating through such means as patronage,faction, standing armies (as opposed to the ideal of the militia), established churches (opposed to the Puritan and deist modes of American religion) and the promotion of a monied interest .
The founders believed in the Republic and that was how they wanted the newly formed United States to function. Republicanism made high moral demands on its citizens, in addition to entrusting them with the defense of their communities. For example, a citizen of a republic was expected to subordinate self-interest to the overarching good of the community.
The public good was, in fact, the lodestar for a republican government. Citizen participation in civic affairs was absolutely essential to a republican government. It was understood that there was a moral obligation obligation for citizen participation in government. This moral obligation was described in the literature of the times as public or civic virtue.
The next hurdle is the Standing Army v. Militia question which was a very prominent theme in Anglo-US history during the 17th, 18th, and start of the 19th Century. A professional standing army was seen as another instrument that could be used by a tyrannical government to subjugate its citizens. The institution of the militia served to eliminate the possibility of a coup by ambitious military leaders (e.g., Julius Caesar). The presence of an armed citizenry also served as a visible reminder to the executive of the ability of the people to remove the "tyrant" by force if necessary.
But, since the militia is an institution of Anglo-American heritage--why does the concept of "gun rights" only exist in the US? Shouldn't this "right" exist in other common law jurisdictions? How (and why) did the Australians, who have a similar attitude to firearms as the US, enact such strong gun laws after the Port Arthur massacre? That shouldn't have happened if there was a universal common law concept of gun rights.
We can get into how Scalia and Alito legislated from the bench by judicially amending the Constitution in their decisions (see US v Miller and Justice Stevens' dissent in Heller<) , but that is many other posts I have made.
In short, the "individual right" interpretation of the Second Amendment has a lot of work to get around the warning bells to thinking minds that it is bullshit. There is too much revisionist history and nonsense written buttressing that opinion that makes no sense when properly scrutinised.
  • Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
  • William S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).
  • Western, J.R.: English Militia in the Eighteenth Century: The Story of a Political Issue, 1660-1802 (ISBN: 978-0751201406)
  • Beckett, Ian: Britain's Part-Time Soldiers: The Amateur Military Tradition 1558-1945 (ISBN: 978-1848843950)
  • Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
  • Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
  • Denning, Brannon P., Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 Okla. City U. L. Rev. 191-245 (1996)
  • Mahon, John K, The History of the Militia and the National Guard
  • Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of America: Revised Edition
  • Riker, William H, Soldiers of the States
  • One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).
  • See also Adam Smith's Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.
  • Also, David Chandler & Ian Beckett, The Oxford Illustrated History of the British Army (ISBN: 978-0198691785) has a section on the Amateur Military Tradition (I.E., the Militia).
  • Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)
  • Schwoerer, Lois G. "No Standing Armies!" The Antiarmy Ideology in Seventeenth-Century England
  • Whisker, James Biser The Citizen-Soldier under Federal and State Law, 94 W. Va. L. Rev. 947 (1991-1992)
  • Cooper, Jerry The Rise of the National Guard: The Evolution of the American Militia, 1865-1920, ISBN: 978-0803264281
  • Bogus, Carl T. THE HISTORY AND POLITICS OF SECOND AMENDMENT SCHOLARSHIP: A PRIMER, Chicago-Kent Law Review, Symposium on the Second Amendment, vol. 76, 2000: 3S
  • Spitzer, Robert J. LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT, Chicago-Kent Law Review,Symposium on the Second Amendment vol. 76, 2000: 349

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