August 12, 2019

This idea of a collective right is so interesting to me.

And by interesting, I admit that I am still trying to understand what it means, or if it is just meaningless words. So I will state in modern plain English what I think proponents of the "collective right" interpretation are saying:

"There is no individual right to own or keep firearms. But there is a right held by the collective, exercised by the states, to have a well regulated militia that is separate from any standing federal army. Well regulated in this context refers to order, discipline and control, and does not mean 'well equipped'. This is how all reputable legal scholars interpreted the 2nd Amendment prior to the late 20th century. Oh, and Scalia was not an originalist."

Did I get that right? Please tell me if I did not. For now I will proceed as if that is the "collective right" interpretation.

My first observation is that if our states are supposed to exercise this right through our well regulated militias, where are those well regulated militias? Today they are called the National Guard. They are nominally controlled by the states, but it is my understanding that they can be federalized at any time, and then they are essentially a reserve component of the standing federal army. This situation has arisen because Congress has passed laws pursuant to their Article 1 powers related to the militia. But since the collective right to bear arms was recognized by amendment, that amendment would seem to place a restraint upon Congress' power to take federal control of a militia. So could a state, pursuant to the 2nd Amendment, refuse to have its militia placed under federal control? Under the "collective right" interpretation, it would seem so.

My second observation is that the well regulated militia is essentially a police force for keeping order, protecting life and property, and augmenting the local civilian police during times of natural disaster and civil disorder. But it is my understanding that the states were always understood to have general police powers to enforce their laws. So if the purpose of the 2nd Amendment was to protect the state power to police itself, I have two points: (a) It is so interesting that in a Bill of Rights, we have found inserted a grant of police power, and (b) this would seem to mean that the repeal of the 2nd Amendment would cause the states to lose some of their police power.

So let us suppose that Heller never happened, and the "collective right" interpretation had gone unchallenged. Suppose under those conditions, we were able to repeal the 2nd Amendment. What would change as to the state collective rights and powers? What would change as to relationships between the federal government and the states? Something would have to change, or else that would mean the 2nd Amendment had been meaningless. And it is absurd to think that a meaningless item would have been inserted in the Bill of Rights. Now, you could argue that the 2nd Amendment is unnecessary in the way that we might think of the 3rd Amendment. The federal government doesn't go around trying to force us to give room and board to soldiers, so who needs the 3rd Amendment? Yet, if it were repealed, it would indeed remove a legal barrier to the quartering of soldiers in homes. Under the "collective right" interpretation, what legal barrier would be removed with the repeal of the 2nd Amendment?

My last point is that the argument that the individual-right interpretation has only prevailed recently in the courts, and is therefore wrong for that reason, is weak and illiberal. Brown v. Board of Education went against Plessy v. Fergeson. Did that make it wrong, in your opinion? Roe v. Wade expanded the traditional interpretation of 4th Amendment privacy, preventing states from interfering in abortions in the way they had been for over a century. Does that mean that Roe v. Wade was wrong, in your opinion?

August 4, 2019

I think that's debatable.

If the Klan were riding into my town, I'd feel better sitting on my porch with just such a weapon as you mention. My wife's ancestors found themselves in just such a situation, and successfully defended themselves, though I don't know the details of the weapons either side had. In eastern North Carolina where some of my ancestors come from, the Lumbee Indians ran off the Klan with firearms. Unfortunately, we are entering a time where these types of interactions are more likely to occur. The bad people have already armed up, and I would not want to discourage the good people from doing so, nor encourage a good liberal to disarm. To me, it is not about gun collections, or hunting, or target shooting for fun. But everyone has their own individual reasons.

That being said, you do have a point. Governments are established in part to protect the public safety. They do this not only by prosecuting those who have committed crimes, but also through some degree of regulation. Surely we would agree that nuclear weapons, or nerve gas, or fully automatic weapons, should not be in private hands (but neither in police hands). The right to self defense must be balanced against the protection of public safety. So are all of our rights. A person whose home is not subject to random search due to the 4th Amendment could be stockpiling ammonium nitrate, which could be much more lethal than any firearm. But there are regulations on the sale of large amounts of such things, sales are tracked, etc., as they should be. Hopefully you and I could have a discussion on what constitutes reasonable regulation of firearms. When someone (like the OP) says that anyone not in agreement wants for massacres to happen, this is not conducive to a reasonable discussion.