12 responses so far ↓

• 1 Grant Gould // Mar 14, 2007 at 5:30 pm

  As it was explained to me once (so I may have the details wrong), the collective rights view says that the second amendment prohibits the federal government from preventing the states from forming armed militias. That the states by and large do not bother forming armed militias thus makes the amendment a silly leftover, much like its successor the Third Amendment.

• 2 kth // Mar 14, 2007 at 5:51 pm

  The disagreements over the 2A seem exaggerated to me. Surely the NRA doesn’t believe that it is unconstitutional to forbid citizens from owning rocket launchers or Stinger surface-to-air missiles. AFAIK, the NRA even acquiesces in the govt’s power to outlaw fully-auto rifles.

  So the collective vs individual right seems to be a red herring. There is an individual right to own a weapon, but the government is free to say which weapon. By the same reasoning that allows machine guns to be outlawed (which, again, most gun rights advocates do not dispute), the government could easily draw up a whitelist of approved weapons, and say that these are the only kind you can own.

• 3 Julian Sanchez // Mar 14, 2007 at 5:54 pm

  The latter comment is one of a great number of instances of “stuff people argue vis a vis the Second Amendment that they believe about no other provision of the Bill of Rights.”

  For instance: Nobody argues that the First Amendment permits Satanists to sacrifice babies, or people to shout fire in a crowded theater, or businesses to defraud customers with false claims about their products. Clearly, these rights are not absolute. Therefore, the government may create a whitelist of approved religions and publications.

• 4 Grant Gould // Mar 14, 2007 at 6:06 pm

  Really, the limitation of weapons question has to some extent been adequately addressed in legal precedent. The Court has held that the 2nd Amendment extends only to those weapons that would actually be of use to an informal citizens’ militia — not to a sawed-off shotgun, for instance, which was at issue in the case.

  Using the militia clause to limit the sorts of arms allowed by the keep-and-bear clause seems downright sensible to me. A militia of untrained citizens does not have any use for an F-16, it seems to me.

• 5 Julian Sanchez // Mar 14, 2007 at 6:19 pm

  Sure: That’s another story. I’m not contesting that the scope of the right can be constrained by its explicit purpose, just the argument from any constraint to unlimited government latitude to define the scope.

• 6 FinFangFoom // Mar 14, 2007 at 6:45 pm

  Julian,

  The reason that the right is not mentioned in the main text of the Constitution itself rather in the Bill of Rights is the reason that all of the rights not mentioned in the Constitution. The framers did not believe that the federal government would have the power to do any of the things which the Bill of Rights protected against.

  Note that Amendment 10 also sets rights that the states have versus the federal government.

  I think that’s a false analogy between the First and Second Amendments. All weapons are similar in a way that speech and religion cannot be.

  Also, the current expansive First Amendment jurisprudence really only runs back to the New Deal era. Prior to that time, I don’t think a single challenge based on it won.

  Also, Satanists can’t sacrifice babies for the same reason I, an atheist, can’t. Religion is a status more than a set of actions. The idea that the government can’t impose on religions even with facially and purposefully neutral legislation came out of the Religious Freedom Restoration Act (RFRA)(the one that ended up allowing the Indians in Oregon to use peyote or whatever).

  As to the collective right model:

  Presumably, within the collective rights model, a state could say that M-14 rifles are the weapon of its militia, which is all males between 18 and 55. The federal government couldn’t say that this is a weapon illegal for citizens to possess. Unfortunately, there has never been a case where the federal government tried to unconstitutionally regulate a militia in that manner.

• 7 Consumatopia // Mar 14, 2007 at 6:52 pm

  It wouldn’t be the biggest head scratcher in the Bill of Rights. Consider the Ninth. There’s one interpretation that lets courts protect rights that aren’t explicitly named in the Constitution. And the other is that it’s completely vacuous and redundant. I suspect that people with vacuous interpretations of the Second are more likely to have at substantive interpretations of the Ninth, and vice-versa.

  All that said, I favor gun rights but I don’t think the founding dads put anywhere near the level of thought into the Bill of Rights that they put into the rest of the Constitution. A bunch of ambiguous, feel-good ideas tacked on to win popular approval. They’ve worked out reasonably well, though.

• 8 William Newman // Mar 15, 2007 at 9:11 am

  It would be interesting to get a clear answer to “What exactly is the ‘collective right’ interpretation even supposed to mean?” But I’m not sure it was ever thought out that carefully. Find a creationist who believes that by the second law of thermodynamics, order implies the existence of a creator. Ask him where Jack Frost fits into the scheme — angel, devil, mischievous space alien? I’ll give you very good odds that he hasn’t thought about it unless someone made him do it, and that he resents it. His belief is not the kind of general truth that you actually reason from, just the kind of special-purpose truth you bring to bear in one particular argument but avoid reasoning from elsewhere. Find an academic who believes that the US RKBA is a collective right, and propose a dissertation on the implications for the political science of federalist nation-building of how remarkably little friction there was between the national Bill of Rights collective right in Philadelphia and the more-difficult-to-read-as-collective Pennsylvania BoR right generated so little friction (or even comment) through a period which included the Whiskey Rebellion. His response is unlikely to be delighted intellectual excitement.

  Special purpose tactical-use-only truth is not hard to find. Where does a woman’s right to control her body end, exactly (pot, prescription drugs, porn, prostitution…)? Or: you’ve written about how the left and the “line running through Mill and Rawls,” but in my experience a leftist with Rawlsian beliefs is exceedingly likely to have Rawls as a tactical belief, selectively giving his preferred collective boundaries (commonly his nation) a magical free pass. And, in my experience, tactical-use-only truths don’t usually come with an interesting body of theory behind them, just intellectual flabbiness.

• 9 Matt Weiner // Mar 15, 2007 at 11:07 am

  in my experience a leftist with Rawlsian beliefs is exceedingly likely to have Rawls as a tactical belief, selectively giving his preferred collective boundaries (commonly his nation) a magical free pass.

  This is unfair; Rawls himself thought that differences between peoples were significant, and he had arguments for that (that world government is infeasible, and the societal schemes for cooperation that he discussed would have to take place on a smaller scale). The merits of these arguments are certainly debatable, but it’s not an ad hoc move.

• 10 David Tenner // Mar 15, 2007 at 1:18 pm

  I am not particularly impressed by the “collective right” interpretation, but at least one argument Julian makes against it seems unconvincing: “If it’s supposed to be about protecting the prerogatives of state governments against the federal, why would it be in the Bill of Rights instead of Article IV…”

  This implies that anything in the Bill of Rights must be solely about individual rights, not federalism. That is not true if you count the Tenth Amendment as part of the Bill of Rights–after all it prevents Congress from outlawing some very un-libertarian actions by states (as long as those actions are not prohibited to the states by other provisions of the Constitution).

  Even if you think that the term “Bill of Rights” applies only to the first eight amendments, there is at least one federalism provision there: “Congress shall make no law respecting an establishment of religion…” This prohibits Congress not only from establishing a national church but from interfering with state laws establishing state churches (and yes, there were such laws at the time). (Whether the 14th Amendment prohibits state establishments is a separate queston.)

  The fact is that the first ten amendments were adopted to get moderate Antifederalists to support the Constituion, and while the Antifederalists were indeed concerned with the federal government making inroads on individual rights they were also concerned about it being too powerful vis-a-vis the states.

• 11 William Newman // Mar 15, 2007 at 2:17 pm

  Matt Weiner writes “This is unfair; Rawls himself thought that differences between peoples were significant, and he had arguments for that (that world government is infeasible, and the societal schemes for cooperation that he discussed would have to take place on a smaller scale). The merits of these arguments are certainly debatable, but it’s not an ad hoc move.”

  (As to Rawls himself: I have actually only read perhaps a dozen pages of Rawls, and dozens of pages referring to him. Quite possibly I am criticizing Rawls himself for inconsistency, too. My point is that it’s hard to get to nationalism and the like from old liberal universalist ethics running into the general veil-of-ignorance idea. One could say “given that behind the veil of ignorance all I knew was that I was to be born an American,” of course. But I don’t see how one does that without opening up the debate to “all I knew was that I was to be born into the white blue bloods of Virginia in 1788” and such. For all of history, and for the next decade or two, we have a pretty good natural bright line for what is sentient, but smaller in-groups are pretty arbitrary.)

  It might be unfeasible, but (1) I doubt it, and (2) for various other things, being unfeasible hasn’t stopped the left from worrying and haranguing on about it. For example, is world government (or unilateral giving) more infeasible than unilateral nuclear disarmament? I’m pretty sure I have, over my lifetime, heard an order of magnitude more about unilateral nuclear disarmament than about the moral duty of unilateral transfer payments to the least fortunate (as opposed to the least wealthy of those who happen to have inherited membership in some in-group). In the debate over the inheritance tax, how hard would it’ve been for a group on the left to call publicly for, in the spirit of stomping on undeserved inequality, earmarking the proceeds for the absolutely poor individuals who are easily found in the third world?

  Sometimes one sees a group (various police organizations or ethnic groups, e.g.) far more indignant against crimes against their group than comparable crimes by a member of their group, or a licensing board (medical, e.g.) not kicking people out of the profession for gross misconduct, but being ferociously strict about minimizing the number of licenses and stomping on any nonlicensed activity close to their prerogatives. One can say that they are sincerely motivated to uphold standards and it’s just not politically feasible to be strict about insiders. Alternatively, one can conclude that humans are prone to flagrant double standards in applying their high-minded rhetoric, shamelessly compromising their supposed principles to build their in-group coalition. I’m predisposed to the second conclusion.

  Also, infeasible or not, what to make of stuff like
  http://www.matthewyglesias.com/archives/2007/03/highskill_immigrants/ ? Does the policy proposal reduce inequality for the least fortunate behind the veil of ignorance? Is the correct answer “is who cares[, but only because caring about it is politically infeasible]?” I, for one, don’t think that that’s so obviously sensible that it goes without saying. Thus, it’d be nice to see the elided text spelled out half a dozen times before I die. At the rate I’m going, I won’t.

• 12 Kyle Moore // Apr 7, 2007 at 9:26 pm

  Will Newman?!? Wow. That’s just bizarre. The internets never ceases to amaze. You may never read this because it’s three weeks old, but who knows.

  I think Rawls claims that the nation state is largely a closed political system, so the system of cooperation he’s setting up is relevant at the state level. Granted, this is not true economically, but is basically true politically and I think that’s what ultimately matters because his project is not about working out the scope of political institutions but the nature of political institutions.

  Martha Nussbaum criticized Rawls for being insufficiently concerned about foreigners in Frontiers of Justice…but I only skimmed that part. My impression is that her criticism isn’t that he’s inconsistent, but that the social contract procedure means that we don’t take into account foreigners in the realm of justice and that’s bad.