Tuesday, November 15, 2005

The *Living* Constitution

The Constitution's 14th Amendment's guarantee of "due process" provides a right to an abortion, but the 2nd Amendment's guarantee that "the right of the people to keep and bear arms shall not be infringed" provides nothing.

Ah, the trappings of the *Living* Constitution, which finds its nativity in a world where words have no meaning.


Derek said...

Hey Publius-

How do you get around this part "A well regulated Militia, being necessary to the security of a free State..." of the amendment. Doesn't that clearly indicate that the right of the people to bear arms is concurrently tied to their right to be in a militia?

Also, do you think the people have a right to bear any arms, up to and including military grade armament? if not, how do you draw a constitutional distinction?

SirWhoopass said...

Let's take your interpretation. Let's say that the Second Amendment is only governing the right to bear arms in a regulated militia (which is entirely distinct from a federal army, the very reason the Second Amendment was created).

Then what?

The power to regulate firearms would fall completely within the hands of the states. And nearly every state (44 of 50, I believe) protects the right to bear arms within their own constitutions. Most of those are quite explicit that it is an individual right, not tied to a militia. Wisconsin's, for example, states that "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose".

Orrin Johnson said...

Hey Derek - how do you get around the words "the people" in the amendment? The Founders were worried about the ballance of power BETWEEN the people and the state (police, military, etc.). They wouldn't have used those terms interchangeably.

This provision exists because states were worried that a Federal Government they saw as extremely powerful (if they could only see us now...) would completely subvert the individual sovereignty of the states (and of the people themselves), upsetting the ballance of the "split atom of sovereignty" that keeps power divided and the people free.

The only difference is that they thought it would be done the way the British Crown did it, with troops from the national government. I doubt they imagined it would be done through the federal courts instead.

Those people lived in a world where governments routinely took people's liberty and property away at the point of a gun. They cared about it both on a personal, individual level, and on a state level.

When you think of a militia now, you think of either those kooks in Northern Idaho, or you think of the National Guard. Neither one is correctly analogous to what the word means as writen in 1791. Then, it referred to the ability of the people (hence that phrase in the wording of the amendment) to rise up as a collective force and keep the government's power limited. "Well regulated" refers not to "federal government controlled," but the ability of the people to come together in an organized way instead of fighting the government individually. (See Federalist No. 29, where the original Publius argued for the Constitution sans amendment, but quoted the concerns of the opposition. Publius wanted NO standing army but wanted the Feds to have to rely on the states exclusivly. Recognizing this as unrealistic, the other side got their way in the 1st session of Congress in 1791.)

The ACLU's interpretation would upset the ballance of raw power by granting it ALL to the government, leaving the people with no ultimate recourse.

You don't think about it in those terms because you live in a country that (in no small part due to that Amendment) isn't taking people's houses at the point of a gun. Except that because of 5 liberal Supreme Court Justices who exercise will instead of judgement (Kelo) that sad day is now closer to reality. And that's why it matters today.

Besides - if you believe in all those penumbras, why are you be so literal with regard to the wording now?

PubliusRex said...

I would draw the distinction similar to the way it's drawn with the first amendment, i.e. yelling fire in a crowded theatre.

Assuming I agreed with your argument, i.e. that the first clause is a limitation of the second clause, I think it would be an uphill battle to argue that "militia" as it was meant at the time would only include the police and national guard, as the ACLU, for example suggests. Given the context of the revolution, I doubt the founders were putting that clause into the constitution to confer a right to the government as you would suggest, when they as the people had just used private arms to overthrow the government.

derek said...

That's plenty from the peanut gallery. I didn't make any statement of "my interpretation" nor did I endorse any views on the 2nd amendment. I was inquiring about Publius' view on these two lines of thinking.

Any others that wish to share thier viewpoint are encouraged.

Personally, I am not as tuned into 2d amendment jurisprudence as Publius. My personal thought is that it does tie the right to bear arms to a regulated militia. I don't think that a militia need necessarily be specifically tied to the gov't. In this regard, groups like the "freemen" in Montana or the "michigan militia" would likely suffice. subject of course to regulation, etc.

Also, like speech, I am not certain that any limitations (outside the militia requirement) can be placed on gun ownership. Owning a gun/missle/land mine/grenade shouldn't be a crime. Using a gun/missle/land mine/grenade MAY be a crime.

PubliusRex said...

Derek -

If I attributed a viewpoint to you that you didn't express, I apologize.

I agree with much of what you've said. However, if the major groups favoring gun control thought membership in the "michigan militia" was sufficient to escape burdens on the right to keep and bear arms, I doubt this would be a contentious issue.

Also, "regulation" is a dangerous word. The power to regulate is the power to destroy.

Orrin Johnson said...

So say Publius Rex and I get together as neighbors and agree to shoot each others' trespassers - would that suffice if the Freemen do? And what are your thoughts on the group of civilians on the border right now to "back up" the border patrol?

Remember that the Constitution (still) doesn't allow a standing Army - it has to be re-established every 2 years. The founders feared a governmental monopoly on force. Again, when it became obvious that the US Army wasn't going anywhere in fact, the 2nd Amendment was obviously necessary to maintain that ballance.

The larger point of the post is that the concept of a "living constitution" leaves all of this up to the policy predilictions of judges. If 5 justices happen to agree with the ACLU on the 2nd Amendment, saying that "times have changed, we don't need minutemen with muskets anymore, and they should be made illegal," then they disregarded the careful deliberation in place to secure that right for posterity.

If the founders wanted the Constitution to be so plastic, they would have made the Amendment procedures as simple as passing ordinary legislation, and they wouldn't have included the Supremacy Clause.

I know that you aren't necessarily speaking for the ACLU, but it's a powerful organization which sets the agenda for much of the left's overall legal theory. It provides Constitutional justification to policy decisions whether or not those policies have anything to do whatsoever with Constitutional law. That's dangerous (even to the left) because it will limit your own protections when the judges aren't so philosophically inclined (and they won't always be).

There's a reason we write stuff down. It's not so it can "change with the times."

PubliusRex said...

In the end, my beef with the living constitution can perhaps be best communicated with the following question:

How would you feel about a court comprised of 9 conservative Brennans who believed in a living constitution?

If your answer is, "not very well," then it's hard to understand why you favor, as a matter of principle, a living constitution.