Parsing The Second Amendment
Mike Cox, the attorney general of Michigan, parses the language of the Second Amendment to the Constitution and compares the language to the rest of the Bill of Rights. He makes a very strong case that the right to keep and bear arms is strictly an individual right and cannot be construed as a collective one.
To analyze what "the right of the people" means, look elsewhere within the Bill of Rights for guidance. The First Amendment speaks of "the right of the people peaceably to assemble . . ." No one seriously argues that the right to assemble or associate with your fellow citizens is predicated on the number of citizens or the assent of a government. It is an individual right.
The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." The "people" here does not refer to a collectivity, either.
The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.
The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, "the people" are separate from "the states"; thus, the Second Amendment must be about more than simply a "state" militia when it uses the term "the people."
Consider the grammar. The Second Amendment is about the right to "keep and bear arms." Before the conjunction "and" there is a right to "keep," meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.
Read it all, it is very well written and thought out. One hopes that Mr. Cox will file a brief with the Supreme Court detailing all of his points in legalese. There are real problems that many of the possible rulings by SCOTUS could cause, especially if they take the route of essentially nullifying the Second Amendment. (I do not think that is likely.) But virtually any ruling that does not affirm the individual nature of the right to keep and bear arms would be a serious problem.
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Daily Propaganda | Death by Machine — Friday, 23 November , 2007 @ 7:16 pm
By martian, Friday, 23 November , 2007 @ 11:27 am
Once again, the definition of “militia” must be considered. By its very nature, a militia is comprised of volunteers. It is an informal group that has no camps, no bases, and no ARMORIES. If the members of the militia don’t bring their own weapons with them, where the heck are they supposed to get them? Of course the right to “keep and bear arms” is an individual right. Every angle you look at it from points directly back to the individual. A reasonable person can interpret the Second Amendment in no other way.
By McGehee, Friday, 23 November , 2007 @ 5:51 pm
To analyze what “the right of the people” means, look elsewhere within the Bill of Rights for guidance.
Precisely. I can think of no clause that could be added to freedom of speech or any of the others, that could convince an otherwise rational person that those are meant to be collective rather than individual rights. Those responsible for the wording of the Second Amendment used that phrase for precisely the same reason it was used in the First Amendment –and if they had meant something else they would have called it something else.