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Constitutional education, history, commentary, reform, compliance, and interpretation.

2008/07/08

Individual Rights View of the Second Amendment

Rather than searching for evidence of courts taking an individual rights view, it might make more sense to seek evidence from near the Founding of anyone taking the "collective rights" view. I confidently predict you will find none, because it was first introduced in the late 20th century to rationalize gun control, and would have been thought bizarre by the Founders, for whom all rights were inherently individual. For them, rights, which would be called "immunities" by the framers of the 14th Amendment, were restrictions on the power of officials to act against individuals. ("Privileges" were created by government, by contrast to "immunities", which preceded government.) Even something like voting (a privilege), which can only meaningfully be exercised on a collective occasion, is still individual, not collective.

It is not likely to be productive, after an issue has been misframed by partisans, to seek historical evidence of it being otherwise framed in the past, because anyone can always invent some new way to misframe an issue that previous generations would never have thought of and would produce no evidence on the matter one way or another.

This is perhaps negatively illustrated by the absence of attempts to exhaustively list ("enumerate") all rights ("privileges and immunities"), an effort which Justice Bushrod Washington found to be "more tedious than difficult" in Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823) , before making an effort to broadly list a few of them. Even the state ratifying conventions in their proposed amendments did not attempt to list them exhaustively. I have tried to do that in Presumption of Nonauthority and Unenumerated Rights. It can be done by proceeding from a higher level of abstraction and then working down to more specific levels, but people in the Founding Era were more accustomed to thinking in terms of more specific rights arising from particular disputes, without getting around to abstracting them systematically. We have made some philosophic progress in 232 years.

The Case against Thierry & Nugent for Libels and Contempt of Court illustrates something else: the original standard of due process according to which issues of law were supposed to be argued in the presence of the jury. See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573.

The term "states' rights" is a somewhat misleading abbreviation of "powers reserved to the states or to the people" from the Tenth Amendment, but even so it refers to the individual right not to have the central government exercise undelegated powers against either a state government or its citizens. We sometimes forget that the original idea was that individuals could privately prosecute a public right in court without having to have been personally injured first, a right that was not formally abridged until Frothingham v. Mellon, 262 U.S. 447 (1923). See "The Metaphor of Standing and the Problem of Self-Governance", by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

The key point, as I have often stated, is that militia is primarily defense activity and only secondarily those engaged in it, as was common usage of many words in that era, and that there is no minimum number of those who may engage in it. An individual is always and at all times at least a militia of one. But 18th century English is a foreign language with respect to 20th century English.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.

There is an important distinction between the legal duty to respond to an official call-up, enforced by penalties such as fines or imprisonment, and the social duty to defend the community. The two kinds of duty, the first deriving from the constitution of government, the second from the constitution of society, define two different subsets of the population, which I call the mandatory militia and the general militia, using the term to refer to those engaged in defense activity. The first is a proper subset of the second. People in the Founding Era often loosely used the same word to sometimes refer to the first, sometimes to the second.

However, there is a social duty to respond to a not necessarily official call-up that is enforceable by exclusion from protection or ejection from the community. As a duty, militia is the duty that defines the social contract, and as such precedes government. The authority to issue a call-up is a threat, and the duty comes with awareness of that threat, no matter who might become aware.

As discussed in "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, communities in the 18th century were managed by juries and militia (and a jury was seen as a kind of specialized militia), with little government other than perhaps one part-time sheriff and judge. Militia was often called up not just for defense, law enforcement, or disaster response, but to perform community services such as repairing roads and bridges, erecting schools and town meeting halls, etc. These things were seen as defense activities. One was asked to care for those with smallpox because the disease was a defense threat. (And it is interesting that the understanding of disease as caused by an infectious agent was widespread long before Pasteur.) In an age when everyone was needed for defense, it made sense to make sure everyone could make a living and provide for his family. Care for the elderly was care for veterans who had done their part when they were younger.


1 comment:

Edward said...

As I mention in another post, I recommend individuals interested in becoming more informed on the 2nd ammendment as well as individual rights to keep and bear arms and the separation of the militia issue with that right, to read the courts ruling on DC versus Heller (http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf). I believe that the decision (delivered by Justice Scalia) provides very clear definition (and hopefully definitive) of the intent of the framers of the constitution.

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