Of Rights and Lefties

Jeff Kirvin writes on technology, PDA's, and the craft of writing. In these areas, his writing is often insightful, thoughtful, and even provocative. When he writes about politics, however, his writing becomes of a decidedly different nature, lacking insight, not very thoughtful, and purely reactionary. An example is his May 7th screed for gun control.

In prior posts, Jeff has complained loudly about government intrusions into personal liberties, but here his liberal ideology insists that this principle of personal liberty be shunned. You see, you don't need guns, only the government needs guns.

Start with his analysis of the 2nd Amendment to the United States Constitution, which he says is not an individual right at all. It speaks of a militia, and therefore me and thee don't get to own or possess firearms.

Take that reasoning to its logical end. There is no right to privacy in the US Constitution. That "right", however, is foundational to Roe v. Wade. If there is no right to privacy then Roe was decided wrongly.

Yet Roe is the law of the land. Why? Because the US Supreme Court said so. In prior cases, they ruled that the US Constitution does contain a right to privacy, that "specific guarantees in the Bill of Rights have penumbras, formed by the emanations from those guarantees that help give them life and substance." (See Griswold v. Connecticut.)

You can't stop your Constitutional analysis at just reading the Constitution. I know that sounds strange, but that's the nature of law and there are centuries of jurisprudence to wade through. The majority of rulings from the District Courts of Appeal have found that the 2nd Amendment does embody an individual right to keep and bear arms. Sooner or later, the matter will again rise before the Court, but until then, Jeff's cavalier dismissal of the 2nd Amendment is simply wrong. (For a more in-depth discussion of the Court's 2nd Amendment views, see here.)

Jeff notes that the 2nd Amendment is obsolete, like "other parts of the Constitution that are irrelevant and out of date." Really? Which "other parts"? Portions of the Constitution don't simply "become" obsolete or irrelevant or even out of date. Those "obsolete" parts were amendments that were enacted and subsequently repealed. The core of the Constitution continues and forms the very basis of the United States.

Notably, none of the first 10 amendments to the Constitution has been modified or repealed or "become" obsolete. These amendments are collectively referred to as the Bill of Rights, and the 2nd Amendment should be studied in this context. The Bill of Rights do not so much grant individual rights as forbid the government from acting to curtail a right. For example, the 1st Amendment doesn't say you have a right to free speech; it says the government can't prohibit free speech. In short, these amendments don't tell you what you can do, they say what the government can't do.

Yet Jeff would insist that we treat the 2nd Amendment differently, as granting an allegedly obsolete individual right rather than limiting government prohibition. For someone who espouses a strong belief in personal, individual liberty, this is a very peculiar stance.

Given the 2nd Amendment, all other arguments become irrelevant. The canard that having a gun in your house increases your likelihood of being killed doesn't matter as it has no legal relevance. It also ignores the innumerous times that personally owned firearms are used each day in acts of self-defense or in defense of others. Those opposed to the personal ownership of firearms will insist that a gun is only "used" when it goes bang, but those who actually use guns know better. The law also knows better. A criminal doesn't have to shoot his gun to have it considered as having been "used" in the commission of a crime.

Jeff implies that you don't need a gun for self-defense, that you should defer to the government for your defense. This position ignores a long-standing rule of American law that states that since the government is obliged to protect society as a whole, it is not obliged to protect any single individual of that society. Therefore, you most emphatically have a right to self-defense, which at its core is what the 2nd Amendment is all about.

As for defense against an oppressive government, Jeff's example of Tiananman Square makes the point for the private ownership of firearms. The Chinese dissidents were unarmed and therefore easy prey. In contrast, note the terrorists we're facing in Iraq. It would appear there are better ways to stop a tank rather than just standing in front of it.

If you agree with Jeff and want to try to repeal the 2nd Amendment, have at it. Public debate is a marvelous thing. But don't just ignore or discount the law because you find it ideologically inconvenient.

Addendum: After I got most of this written, I read some of the comments to Jeff's post. One asks that if the 2nd Amendment guarantees the right to keep and bear arms how does New York City constitutionally ban handgun ownership (the Sullivan Act). They get away with this because the US Constitution, in general, only applies to Federal acts. Under US federalism, the states are considered sovereign, entitled to their own constitutions and laws. Thus, the Bill of Rights does not directly apply. Most -- not all -- were made applicable via the 14th Amendment (see Incorporation). The US Supreme Court, as yet, has not seen fit to apply the 2nd Amendment to the states via the 14th.