Wednesday, June 19, 2002
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Wednesday, June 19, 2002 |
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Amazing constitutional argument: Rights belong to persons, not states By SHELDON RICHMAN
If you want insight into the mentality of the intellectual elite, observe the hysterical reaction to the Bush administration's declaration that the right to keep and bear arms is horror! an individual right. In two U.S. Supreme Court briefs filed by the Justice Department on May 6, Solicitor General Theodore B. Olson wrote: "[The] current position of the United States is that the Second Amendment more broadly protects the rights of individuals ... to possess and bear their own firearms." What is so outrageous about this? True, this has not been the government's position for the last several decades. But that doesn't make it invalid. Maybe the former position, that the Second Amendment refers to the states' right to arm their national guards, was wrong. You'd think Olson and Attorney General John Ashcroft had just legalized the mugging of old ladies. According to Michael Barnes, president of the Brady Center to Prevent Gun Violence, "This action is proof positive that the worst fears about Attorney General Ashcroft have come true: his extreme ideology on guns has now become government policy." Is he kidding? It's extreme to believe that rights belong to individuals? If that's extreme, the Declaration of Independence must be the most extreme document ever written. Barnes's organization continued: "The Department's new policy weakens the federal government's defense of gun laws ... ." (Unfortunately, it doesn't. The government believes the right may be legally limited.) This is the real issue for the anti-self-defense lobby. It's not concerned with the soundness of any argument. All that matters is its agenda. Anything that works to restrict and outlaw gun ownership is good. Anything that promotes it is bad. Objectivity and honest discourse are irrelevantif not dangerous. Here's another example. New York Times columnist Bob Herbert is alarmed that the administration's position will put "more guns into the hands of more people." (Surely we all know several hardened criminals who put off buying guns until the Justice Department's position was clear.) Even if true, that does not prove that the administration's position is wrong. Herbert also claims there was "no need for the government to take a position on the Second Amendment in the two cases for which the briefs were submitted." Even if that's right, so what? The issue is whether Ashcroft and Olson's position on this important issue is valid. But all the anti-gun lobby cares about is its agenda. Truth and falsehood don't matter. That's demagoguery. If you look objectively, you readily see that Ashcroft and Olson have done nothing radical at all. Obviously, gun rights belong to individuals. There's no one else for them to belong to. And the Supreme Court has never said otherwise. On the contrary, the Court has said "the people" in the Bill of Rights means "individuals." Could a right belong to a collective? What nonsense! A collective is composed of individuals. It can have no right not possessed by its members. What does it mean to say the group has a right if no individual has it? The "collective right" position is absurd. Bear in mind that the Second Amendment does not say that "the people shall have a right to keep and bear Arms." It says, "the right of the people to keep and bear arms shall not be infringed." The Amendment does not create the right it recognizes it. This is important because it puts the Amendment's preamble "A well regulated Militia being necessary to the security of a free State" into perspective. The anti-gun lobby says this means only that states may arm their national guards. But the Framers did not attribute rights to states, only to persons. The one reference to the states in the Bill of Rights is about powers, not rights. The militia is mentioned in the Amendment only to explain that a citizen-based defense (the militia) will be effective only if people know how to use guns, and that proficiency with guns depends on individuals' being free to possess them. Hence, "the right of the people to keep and bear Arms shall not be infringed." Twisting this right against tyranny into a state power cynically insults the intelligence of every American. [Sheldon Richman is senior fellow at The Future of Freedom Foundation (www.fff.org) in Fairfax, Va., author of "Tethered Citizens: Time to Repeal the Welfare State," and editor of Ideas on Liberty magazine.]
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