Tuesday, June 07, 2005

2nd Amendment Individual Rights

I've been reading Democracy and Distrust by John Hart Ely. It's one of those books that I saw cited in virtually every constitutional law-related text book during law school, but which I never had the opportunity to read. Having reached page 30, I'm already glad I'm reading it. Ely's writing is smart, concise and, remarkably enough, funny. I'm finding that it's a great refresher on some of the great constitutional arguments about issues of individual liberty and matters of interpretation. In fact, I'd go so far as to recommend it to non-lawyers, if only to get a sense of what is at stake whenever Supreme Court slots are open for nominees.

Anyway, Chapter 2 includes a discussion on the meaning and role of the Privileges and Immunities Clause of the 14th Amendment (a clause, incidentally, that the Supreme Court has interpreted to be so limited in effect as to be virtually meaningless). Ely argues that this is incorrect and that the Clause in fact delegates the power (and duty) to future decisionmakers (courts?) of protecting rights that are unenumerated in the Constitution, but which are still retained by U.S. citizens. In making his argument, Ely quotes a floor speech by Senator Jacob Howard (R-MI) from 1866 during debate over the adoption of the 14th Amendment. In the course of speech, Howard asserted the following:
Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be - for they are not and cannot be fully defined in their entire extent and precise nature - to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as...the right to keep and to bear arms."

I cite this not because I think it is conclusive with regards to current 2nd Amendment debates, but because I find it interesting. It would appear that atleast some folks writing the 14th Amendment believed that the right to bear arms is an individual right. This is important because, as you may know, the 14th amendment incorporates the Bill of Rights and applies them to the states. Presumably, therefore, any constraints the 2nd Amendment places on the federal government also apply to states (assuming I remember incorporation correctly).

There is much discussion among the gun-control and anti-gun control crowds about whether the 2nd Amendment defines a collective or an individual right. Right-wing gun advocates like to believe that if it defines an individual right, then any regulation of gun ownership is presumably invalid. (Such a claim ignores the fact that no individual right under the Constitution is absolute.) Left-wing anti-gun advocates like to believe that if it defines a collective right, then Congress may pass laws that ban all firearms (or, at a minimum, all semi-automatic firearms). The Department of Justice, it turns out, argues the individual right view, but takes the middle road. I haven't read the DOJ memo (which came out in 2004), but I'll be interested to see whether it considers materials like the 14th Amendment debates cited in Ely's book.

Not much point to this post, but hey, atleast it's content...