Friday, June 15, 2007

A Quick Response Regarding the Second Amendment

Below, DC points out an argument made in a comment regarding my interpretation of the Second Amendment. I felt the need to respond.

I quote the argument again:

If the first amendment read, "a well informed electorate, being necessary to a free people, the right of the people to free speech shall not be infringed," would you suggest that the right of free speech was a collective right existing only to voters and only as to political speech? I doubt it. Beyond that, the militia was at the time of the founding of the Constition, all freemen capable of bearing arms, and in fact by federal law is all males between the ages of 18 and 45 and all female members of the National Guard, with some minor exceptions, so your National Guard theory is wrong as a matter of fact. Moreover, not one legal scholar ever embraced this restrictive view of the amendment prior to the 1930s. The evidence is overwhelming that the amendment was intended to protect private ownership of arms, otherwise it would have essentially gutted the federal government's powers to arm and control the organized militia set forth in Article 1, Section 8. You need to actually read the militia clauses to understand this.

First, if the First Amendment read as the commenter suggests, I would have a more restrictive view of free speech, at least constitutionally. As it stands, the First Amendment protects all speech (or almost all, for practical purposes). However, under the commenter's hypothetical amendment, if there is some form of speech that is clearly not directed toward political discourse, it could be outlawed (e.g. the recent "BONG HITS 4 JESUS" case would be a no-brainer). Of course, I would have major problems with such a rule and I would question the wisdom of the framers of the Constitution if they did that, but I would indeed recognize that it does not protect all speech.

Second, I do not argue that the Amendment did not protect private ownership at the time of ratification. As commenter points out, private ownership had to exist in order for Congress to "provide for organizing, arming, and disciplining, the militia." As a matter of fact, this seems indisputable. However, given that a broad understanding of "the militia" no longer exists, and Congress is not organizing, arming, and disciplining this non-existant militia, not allowing private ownership would no longer detract from Congress' Article 1, Section 8 powers as a practical matter.

I've never been a proponent of Originalism or Textualism or any other of those jurisprudential theories that masquerade as "judicial self-restraint." I think that the Constitution is an organic document, so to speak. In order for it to be relevant in modern times, we need to make it relevant. And given that the understanding of the word "militia" has drastically changed since 1787, I think it is foolish to interpret the Second Amendment in 2007 based on a 1787 definition.

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