Today’s the day
Thursday, June 26th, 2008 By Mike Maurer
A lot of excitement on the gun rights side of the aisle today, as everyone who is invested in the issue expects the Supreme Court to rule on Heller. A mix of blogs, press reports and gossip suggests that Scalia will write an opinion that holds the Second Amendment protects an individual right rather than a collective right.
That’s a scary concept. There’s no such thing as a collective right. You have to go to the Soviet constitution or the United Nations for such a thing. A collective right is no right. Put it this way: If Ted Strickland or Bob Taft publishes a newspaper, does that satisfy your First Amendment right of free speech? Of course not. The idea is absurd, and it does not become less so by moving the concept from the First to the Second. Once allow that idea to take root in the Constitution on a right you don’t like, and sure as the sun you’ll find it applies to the rights you do like.
(I quizzed one “expert,” a professor and author of a book on the topic, to name another collective right in the Constitution, and he said “jury,” on the grounds that it takes a group of people to compose it. Talk about not clear on the concept. Another expert, also an author, one who knew what he was talking about, was stumped, for the valid reason that there isn’t any such thing.)
Tags: guns, Heller, Second Amendment
June 26th, 2008 at 10:09 am
Mike Maurer is absolutely right on the individual right vs. collective right issue as it relates to the Second Amendment. In fact, Judge Silberman, who wrote the majority opinion striking down the DC gun control law for the DC Circuit Court of Appeals specifically addressed the issue by putting the Second Amendment in the context of the rest of the Bill of Rights. I expect (and hope) a majority of the US Supreme Court will agree in just a few moments.
Here is a brief quote from Silberman’s opinion:
“When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect personal liberty.The collective right advocates ask us to imagine that the First Congress situated a sui generis states’ right among a catalogue of cherished individual liberties without comment. We believe the canon of construction known as noscitur a sociis applies here. Just as we would read an ambiguous statutory term in light of its context, we should read any supposed ambiguities in the Second Amendment in light of its context. Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity.The Second Amendment would be an inexplicable aberration fit were not read to protect individual rights as well.”
June 26th, 2008 at 11:43 am
[...] justices of the United States Supreme Court are prepared to rule that there is such a thing as a collective right [...]