no third solution

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Category Archives: Legalese

Is the Second Amendment an “Anachronism”?

December 3rd, 2007

Some folk over at Harvard think so. Allow me to disagree.

Via Bureaucrash I picked up an article in the Harvard Crimson arguing that the Second Amendment to the U.S. constitution is an “anachronism” (curiously the only five-dollar word contained therein). The article is the worst of the bleeding-heart worst:

Supporters of a constitutionally enshrined individual right to bear arms argue that state gun control laws have “reinterpreted” the right to gun ownership. These limitations on gun ownership, they say, demonstrate that gun ownership itself is not linked to increased violence. But in the wake of the expiration of the Federal Assault Weapon Ban in 2004, gun control remains relatively lax in many states, especially when it comes to handguns, which are responsible for many, if not most, gun-related murders. Gun advocates claim the need for handguns in self-defense, but such considerations are moot when weighed against the number of lives that might be saved by making the weapons illegal.

Apparently this is the sort of screed that passes for “journalism” at that venerable institution. For shame.

I have nothing substantial to add that I haven’t previously mentioned on more than one occasion, I have a few quick hits, and beg forgiveness if I do happen to reiterate a point or two which I deem to be especially worth reiterating. I charge the anonymous author with the following — The Author

  1. Ignores the number of lives that have been saved because some people have had the ability to defend themselves.
  2. Has not even hinted at the validity of its assertions, especially the glaringly hypothetical “number of lives that might be saved…” and neglects to mention that all-important caveat, the assumption that all or most firearms will be instantly and irrevocably removed from the hands of violent and dangerous people, many of whom are already breaking local, state, or federal firearm laws and who are unlikely to miraculously start abiding laws if only we pass another one.
  3. Fails to address the reality that empirical evidence on the efficacy of gun control is a mixed-bag at best. When empirical results are inconsistent, try to understand why the results are inconsistent with otherwise sound theory — do not suggest that a sound theory is incompatible with reality. It is not.
  4. Does not even pretend to refute the proposition that prohibition (of anything) has not in any instance been historically successful, indeed it is in direct opposition to the laws of economics.

The second Amendment may by some stretch be “outdated,” only insofar as it’s been completely emasculated by the Federal Government, which has taken to emasculating every other check against its nearly infinite power, under which circumstance it needs to be replaced with a more robust and irrefutable assertion of individual rights. The State can rarely protect you from other individuals, and it cannot conceivably protect you from itself.

However apocalyptically unlikely, it is this for this reason — and this reason alone — that the Second Amendment was enshrined in Constitution of the United States.

On the D.C. Firearms Ban

November 21st, 2007

In the news yesterday was the Supreme Court’s announcement that it will finally revisit (early next year) the beleaguered Second Amendment to the U.S. Constitution. The question this time around is over the constitutionality of the District of Columbia’s “regulation” which was struck down last year, after thirty years of oppressing those who live in the District. The “regulation” in question:

[P]rohibits residents from registering and possessing handguns in almost all circumstances. The District also requires that rifles and other long guns kept in the home be unloaded and disassembled or outfitted with trigger locks.

Setting aside the fact that prohibition only works on law-abiding citizens, it has been nearly 70 years since any substantive rulings on the Second Amendment; the previous llandmark (Miller) conveniently avoids the issue by concluding that a sawed-off shotgun is somehow not a firearm as referred to (“to keep and bear arms“) in the Amendment, because it wouldn’t be used in a militia. The ruling in Miller also neglects to address the polarizing question — whether the Amendment was designed to protect individual rights, or some sort of hocus-pocus like collective rights.

Current American jurisprudence maintains the “collective” right, which is queer, as there is nowhere else in the Constitution to which such a “collective” right is alluded: When the framers said “the people,” they meant the people, severally. Furthermore, they made it quite clear that States and Governments are not possessed of rights, but rather powers.
So, to those who suggest that the Amendment in question is meant to safeguard the several States’ ability to keep a militia: it is quite clear that the States do not have a “right” to raise a militia, although they may very well have the “power” to raise one. There are, quite simply, no such things as “States’ Rights.”

Perhaps more importantly, we must not forget that the Constitution is a document designed specifically to enumerate and limit the powers of the Government, setting strict limitations on the powers of the Federal Governments and reserving all other powers to the several States. The Bill of Rights by design is an addendum to that limiting document designed to remove all doubt over certain potential government intrusions. And if it is unconstitutional for the Federal Government, it is equally a violation for a State (or the County, or the Township, or the District of Columbia) to infringe upon the right as conceded: e.g., The Constitution does not say that the Government may abridge the freedom of speech, therefore it cannot do so without violating said Constitution. But just to be on the safe side, they added a sentence or two (the First Amendment) in order to make this painfully and irrevocably clear. Ditto for the Second Amendment, and so on and so forth.

There exist no such things as “States’ Rights.” There are no collective rights, period, and therefore there is no collective right to own or keep guns. Only individuals have and can exercise rights. But my rants on Constitutionalism aside, the frightening proposition is that a Supreme Court may hold the “collective” rights version of the Amendment, which could throw open the floodgates for a slew of gun-control measures to be passed throughout the country. I’m scared.

The purpose of the second amendment is to insure the rights of the citizens remain inviolate — all of their rights. Without the means to defend those rights and expel threats and trespasses against them, they are hardly rights, at all.

States’ Rights – Denial of Same-Sex Benefits

November 6th, 2007

For governments which are ostensibly there to safeguard our rights, our lives, and our property, they sure make quite the habit out of telling us what we explicitly cannot do with same. In Michigan, the debate is over same-sex benefits for public employees — which would include school teachers, university professors, police officers, firemen, and anyone else who’s employed on the public dime:

The implications of the 2004 marriage amendment to the Michigan constitution were argued for the first time before the state Supreme Court on Tuesday in a case involving the extension of health care benefits to the same sex partners of public employees. …

Lawyers representing the public agencies, Gov. Jennifer Granholmn, the ACLU and other gay rights groups said voters had not intended to bar benefits when they passed the so-called marriage amendment, but instead wanted to protect the institution of marriage at a time when same-sex unions were being sanctioned or endorsed in other parts of the country.

Fortunately, private employers are not affected by the amendment that proscribes the provision of benefits to same-sex couples.

Sure, you could probably try and make a rather weak argument that the State should have the power to limit the benefits it grants to those in its employ; after all, private companies are (for the time being) and ought to be able to offer or deny such benefits as they deem appropriate. But the fact of the matter is that the State is not a private company, and simply shouldn’t enjoy the same privileges – actually exercises of rights – to which a private company or individual is entitled. “States’ Rights” is a null concept, as only individuals can have or exercise rights. So the State cannot have the same “right” to do something which a private company or individual would, it can only exercise power in denial or affirmation of such rights.

A State which forbids the provision of same-sex benefits by private companies would be condemned for denying the rights of individuals. A State which forbids the provision of same-sex benefits to its own employees is only marginally less guilty of the same crime.

no third solution

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