Say Anything Blog

Normally, we think of public officials jealously defending their turf and their regulatory authority. This was not the case, however, last Friday, when Michigan’s Attorney General, Mike Cox, wrote a succinct and brilliantly reasoned Op/Ed in favor of the overturning of the District of Columbia’s ordinances banning the private ownership of handguns.

The U.S. Supreme Court has agreed to hear the DC appeal of the appellate court’s ruling in Parker v. D.C., and Cox vigorously defends the view of the Second Amendment as detailing an individual’s right to keep and bear arms, rather than a so-called “collective right” to be freely regulated by the state.

Legal, historical and even empirical reasons all command a decision that recognizes the Second Amendment guarantee as an individual right…

First, Cox examines the totality of the Bill of Rights… the context of the Second Amendment. He correctly finds no “collective right.”

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.”

Next, Cox looks at the language used.

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.

Then, Cox notes the history of both the Bill of Rights itself,

Madison’s draft borrowed liberally from the English Bill of Rights of 1689 and Virginia’s Declaration of Rights. Both granted individual rights, not collective rights.

and of the society as it framed the context for the Bill and the Second Amendment,

Most of America was rural or, even more accurately, frontier. The idea that in the 1780s the common man, living in the remote woods of the Allegheny Mountains of western Pennsylvania and Virginia, would depend on the indulgence of his individual state or colony--not to mention the new federal government--to possess and use arms in order to defend himself is ludicrous.

Meanwhile, over at the Volokh Conspiracy, Jonathan Adler noted Attorney General Cox’s OpEd, and his post generated a lively series of comments, including those of “Waldensian”,

We’re talking about people who find gun ownership offensive on a cultural/philosophical level, and are groping around for excuses to abolish it which might persuade those who don’t share those basis for objecting to it.

I find this to be true. Once you start debating proponents of gun control on the merits, you find that for many such people (indeed, in my experience, the vast majority of such people), the facts and data simply don’t matter. They don’t like guns, and they just know that banning guns will reduce violent crime, and that’s all there is to it.

For many, the virtues of gun control are like a religion—it amounts to a non-falsifiable belief. And, like most religions, this way of viewing the world has extremely negative effects…

a vigorous mini-debate between “jgshapiro”

Finally, what constitutes tyranny? Is it just a president who refuses to leave office or a General who decides to take office? Or is it the government enforcing laws someone doesn’t like? Look at the Freeman or at David Koresh. Were those just people defending themselves against government oppression (I’m sure they would say that) or was it just the ordinary application of the law against well-armed nutballs?

Again, the second amendment may have made sense in 1789 given what was happening at the time, but it has outlived its usefulness as a bulwark against tyranny. It seems to do more harm now than good…

and “juris_imprudent”

Though anarchy is certainly not preferable to our democratic republic, it may (and please consider that to be a highly provisional may) be preferable to tyranny. Also, consider that a tyrant wants order - the opposite of which you posit as a response. That too might enter into the calculus of the overly ambitious.

The RKBA was never solely predicated upon the existance of a militia - but the existance of a militia was utterly dependent on the people’s RKBA. That we no longer rely on a militia (not for a very long time) as our primary source of national defense, does not obliterate the underlying right.

and a lengthy and detailed, multi-party argument regarding the illegal confiscation of privately owned firearms by the New Orleans police in the immediate aftermath of Hurricane Katrina.

I encourage everyone interested in gun control and the Second Amendment to read both Cox’s excellent article, and the comments appended to Professor Adler’s post at Eugene Volokh's blog.