Wednesday, June 30, 2010

I Wish I Had Said That!

From a wide-ranging discussion of the Second Amendment, McDonald, Sotomayor, Kagan, etc. on the Volokh Conspiracy:

Owen H: Can any of the originalists out there point to where the Constitution specifically enumerates a right of armed self defense? I mean, the 2nd doesn’t say individual self-defense, it talks about defending the nation.

Allan Walstad: This has been gone over so many times on earlier VC threads over the years. 2A says the right of the people to keep and bear arms shall not be infringed. The language “shall not be infringed” explicitly indicates a pre-existing right, not one in any way created by the Constitution. The security of a free state, mentioned in the preamble, surely includes the security of the people, not just the borders or the organs of government. Even such a twisted anti-gun propagandist as historian Saul Cornell doesn’t aver that 2A is about defending the nation, rather his joke of an interpretation is that it was a bone thrown out to the states, that their militia units could not be disarmed by the feds. Shall we believe that 2A simply means you have a right to a gun while serving in the military?? Is there some sinister likelihood of the government sending troops into battle without arms? So are we to believe then that 2A means you can have a gun locked up somewhere for when called up by the government to defend the borders and the organs of government, but if brigands invade your community or home, attack you and your neighbors, rob your property and rape your kids you can’t use the gun for defense because the “security of a free state” has nothing directly to do with the security of the people in it?



TJP said...

Uh... a right to "bear arms" includes self-defense.

Even if those words did not appear, the right to defend one's life is not invalidated. It's actually pretty freakin' obvious that no rights are exercised by dead people. The commenters did justice to the questions, but frankly they wasted too many keystrokes.

The original question reveals a fundamental and profound misunderstanding of the Constitution and its philosophical infrastructure. Any literalist argument against unnamed rights of the people is irrelevant and should rightly be dismissed. The Bill of Rights also does not specifically enumerate a right to eat, to defecate, to respire or to procreate. It is impossible to list all the rights which belong to the people, because they are innumerable. The Bill of Rights only enumerates the rights for which the anti-Federalists agitated.

I question the intent behind applying the term "originalist" to anyone who wishes that the Constitution be obeyed. Were I too apply revisionism to the meaning of "speeding" during a traffic stop, I would be regarded as a law-breaker by the state. You know that little balance scale featured in the emblems of various departments of justice? That has a meaning which should be more regularly observed by both statist apologists and public servants.

TJP said...


"The Bill of Rights only enumerates the rights for which the anti-Federalists agitated."

...should read...

"The Bill of Rights only enumerates the rights for which the anti-Federalists agitated, and it is constructed as a list of prohibitions against government action, in the context of a document which lays out the limited duties of the federal government."