stat counnnter

Wednesday, December 05, 2007

Another Editorial on 2nd Amendment

This past Monday I posted on a Detroit Free Press editorial calling for a national list of gun owners. Yesterday, 12/04/07, Detroit's other paper the Detroit News ran an editorial urging the SCOTUS to find that the 2nd Amendment protections apply to individuals and not to state militias. While I support this position generally, the editorial makes a common epistemological mistake:
But the Second Amendment does use the phrase "well-regulated."

In our view, this means the government, federal, state and local, has the right to restrict private ownership of such items as machine guns and heavy military hardware. Reasonable regulations such as registration, gun training, certain gun lock requirements, waiting periods for background checks before guns are sold, barring felons from gun ownership and other limitations may easily fall within the normal police powers of the state.
First of all, the phrase well-regulated is explicitly tied to the concept militia and not to the pool of citizens from which the militia was to be drawn. Well-regulated does not apply to individual citizens or their guns outside the context of militia. I do hope the Court understands this context. As I mentioned Monday, to say the the right to keep and bear arms applies only to government militias is to say that the right of the government to keep and bear arms shall not be infringed, a completely ludicrous notion. The right to keep and bear arms can have only one meaning, a right of the individual.

As for the list of so-called reasonable regulations in that paragraph, they're a mixed bag. No distinction is made between substantive regulations, those that involve initiating force against citizens by restricting thus violating their rights, and procedural regulations, those that employ the government's monopoly on retaliatory force to answer the question: How best can we exercise our right to keep and bear arms? It's my judgement that requiring certain gun locks would be a substantive regulation involving initiatory force against citizens thus violating their rights. Where as laws against say firing a weapon in a residential neighborhood could be valid regulations because no one has the right to threaten the life of others. The removal of such threats is a proper function of government. But such threats must be clearly and objectively defined.

It is critical that the distinction between starting the use of force and retaliating with it be grasped clearly. Procedural regulations are based on the positive idea of respecting the rights of others and not on the idea of restricting or limiting rights. No one has the right to violate or threaten to violate some one else's rights. Since that right does not exist, well, you can't limit or restrict that which does not exist. It is absolutely essential that our lawmakers and judges think in these terms. To suppose that rights can be restricted in any way is not only sloppy thinking epistemologically, it is very dangerous politically in that it can lead to all kinds of very real limits on very real rights in turn leading to their complete destruction.

I am not a lawyer so I'm not sure exactly what regulations would qualify as procedural or substantive in any given context. Such determinations are for those schooled in the law. But I think any lawmaker or judge when considering a particular regulation, should ask these questions: does this law aid in the exercising of a right by employing the retaliatory use of force in the service of recognizing the rights of others? Or does it consist of starting the use of force against citizens to compel a certain behavior which does not remove an objectively provable threat thereby violating rights.

An objectively provable threat must be clearly defined and does not mean that because one is uncomfortable with a neighbor who has a gun and might someday shoot one it justifies one's desire to have the government confiscate his gun. All such
preventive laws are substantive in nature and a violation of citizens' rights and therefore unconstitutional. I seriously doubt that our Supreme Court is even capable of thinking in these terms but who knows, maybe someday someone will be nominated to the SC who is.


Anonymous said...

Adding to the epistemological nonsense, the term "regulated" in the context of the times, referred not to control by the state, but rather to the condition of drill and dress. A "well-regulated" militia was one that was properly supplied with arms, uniforms, ammunition, and training.

This is not to say that militias weren't state entities. They surely were. But that was not what the "regulated" referred to.


Mike N said...


Thanks for making that good point which I hadn't considered.

Myrhaf said...

When people interpret the second amendment to mean the right of the state to create armed militias, it's important to remember that the purpose of the Bill of Rights is to protect the rights of individuals. There is no reason to write into the Constitution a right for the government to create an army.