A Right That Resides In Plain Sight
The Opinion Journal comes out again today with strong support for the right of the individual to keep and bear arms. There is no doubt where they stand on this issue. They use the words that form the title to this post in the first paragraph of the editorial.
The dispute arises from the first four words of the Second Amendment, the full text of which reads: "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." If the first two clauses were omitted, there would be no room for ambiguity. But part of the legal controversy has centered around what a "well regulated militia" means.
Judge Silberman's opinion argued, with convincing historical evidence, that the "militia" the Framers had in mind was not the National Guard of the present, but referred to all able-bodied male citizens who might be called upon to defend their country. The notion that the average American urbanite might today go to his gun locker, grab his rifle and sidearm and rush, Minuteman-like, to his nation's defense might seem quaint. But at stake is whether the "militia" of the Second Amendment is some small, discreet group of people acting under government control, or all of us.
The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort–an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort.
This is so obvious that one hopes even a court can see it. The Bill of Rights does not detail the rights of the government but of the individual. Nobody in their right mind would argue that the right to free speech or the right of assembly dictates government privileges. Yet that is exactly the position that advocates for "collective" rights to gun ownership are doing when they argue that the word 'militia' in the Second Amendment denies the individual the right to keep and bear arms.
By martian, Saturday, 24 November , 2007 @ 11:09 am
This is so obvious it is hard to understand how anyone could interpret the Second Amendment any other way. The Bill of Rights is specifically about the rights of the individual citizen and always has been. Each amendment talks about rights that the state (both state and federal governments) cannot take away from the individual. In no case does anything in the Bill of Rights address the rights of the government. It might just as well have been called the “Bill of Citizens’ Rights” and could still properly be titled that way.
Let’s put this into context. The first ten amendments of the Constitution of the United States of America also known as he “Bill of Rights” was written and adopted by people who had just fought and won a revolution against a parent government. The main reasons for that revolution were that the parent government (the UK) kept imposing new laws, taxes, and conditions on the American Colonists that infringed on the colonial citizens’ INDIVIDUAL rights to self determination and property. So, of course, the first thing the new citizens of the new country did was to create a constitution that guaranteed those INDIVIDUAL rights that they had fought so hard to obtain. The Bill of Rights was NEVER about any government rights or functions. It was ALWAYS about the rights of individuals that should be protected from INTERFERENCE BY GOVERNMENT.