Reply #33: ya think? [View All]

[iverglas]

My actual conclusion, as I think you're aware, is that your second amendment is something that I can pretty safely not bother having any opinion at all about.

My opinion, to the extent that I have one, is moot to both you and me. "Defending my conclusion" just is not a matter of much concern to me. Truly.

What I see is a very badly written, near-incomprehensible expression of some quite unidentifiable thought, formulated by some long-dead people whose thoughts have absolutely no authority for me and no bearing on anything I need to have a position on. Really and truly.


"Why would there be a collective right to do actions which are performed by individuals? (one has to overlook this inconsistency to choose the Collective Right interpretation)"

Now, we do know that we've been through this before. And I'm quite sure that we both know that your representation of what I have said is not quite accurate.

I have never said that there is "a collective right to do actions which are performed by individuals". Absolutely never. And you know it.

Remember how we discussed this? And the analogy I drew (acknowledging that there are no perfect analogies) to how the collective right of a people to govern itself involves the individual right of citizens to vote?

The collective right to which I referred in your second amendment is the right to "the security of a free state", the right that was exercised by the people of what became the USofA when they had that revolution -- an element of the right to self-determination, in some situations. (The right to self-determination does not *always* require "the security of a free state".)

Just like the collective right of that people to govern itself, of which the holding of elections is, in some situations, an element. (The right to self-governance does not *always* require the holding of elections.)

The individual right in your second amendment to which I referred is the right "to keep and bear arms". This is what individuals must (allegedly) be able to do in order for the people to exercise its collective right to the security of a free state, since the people must be able to repel invaders, for instance.

I NEVER SAID that the right "to keep and bear arms" is a collective right.

Just like the individual right to vote, in our respective constitutions, is what individuals must (in our minds) be able to do in order for the people to exercise its collective right to govern itself.

YOUR reading of your second amendment apparently disregards the entire first portion, "A well regulated militia, being necessary to the security of a free state,". Talk about violating the canons of interpretation.

Yes indeed, this does not mean that there is not some separate, pre-existing (and no, I will not say "natural") right "to keep and bear arms" that has nothing to do with the collective right to the security of a free state.

I find that right in the rights to life and liberty. No different from the right to keep pigs, or the right to bear flowers, or children. They are things that people do in the exercise of those fundamental rights: to continue living by defending themselves, and to live as they please by keeping and bearing whatever they fell like keeping and bearing.

Really: in what way does a "right to keep and bear arms" resemble a "right to life" or a "right to liberty"? In very little way, is my answer.

In the exercise of the right to life, we also have the "right" to eat; do constitutions normally say "the people's right to eat shall not be infringed"? Of course not; everybody knows that prohibiting people from eating would be a violation of the right to life. In the exercise of the right to liberty, we also have the "right" to eat pizza; do constitutions normally say "the people's right to eat pizza shall not be infringed"? Of course not; everybody knows that prohibiting people from eating pizza would be a violation of the right to liberty.

With that old caveat, of course -- prohibiting people from eating, or from eating pizza, or interfering in any way with people's ability to eat or to eat what they please, without justification, might be an unconstitutional violation of a right: the right to life (to eat in order to stay alive) or liberty (to eat what they pleased). That is the kind of violation we are concerned with, after all: the violation of constitutional rights in a way that is not constitutionally justifiable. We just aren't concerned with "natural" or any other rights, or anyone's personal opinion about whether violation of such rights is justified.

And I look at the "right" to keep and bear arms exactly the same way: prohibiting people from keeping and bearing arms, or interfering in people's ability to keep and bear what arms they please, as and when they please, without justification, might be an unconstitutional violation of a right: the right to life (to defend themselves in order to stay alive) or liberty (to own and possess and use what they please).

And (without going into the actual *argument* for these positions) I regard Canada's restrictions on firearms ownership, possession and use, just for example, as perfectly justifiable restrictions on the exercise of those rights.

For analytical purposes, and to understand what I'm saying, it would of course be useful to read something like the Canadian constitution (Charter of Rights and Freedoms), which reflects the 200 years of human development and thought and knowledge that occurred after your constitution was written.

The Charter identifies the kinds of rights and freedoms that it entrenches:

http://www.efc.ca/pages/law/charter/charter.text.html

Fundamental Freedoms
(conscience, religion, thought, speech, press, assembly, association ...)

Democratic Rights
(right to vote, limitation on length of legislatures)

Mobility Rights
(right to enter and leave Canada, and to travel and settle anywhere in Canada)

Legal Rights
(life, liberty and security of the person; rights in respect of search/seizure, arrest, detention, trial, punishment)

Equality Rights
(equality before and under the law, equal protection and benefit of the law)

Language and educational rights


These are all different kinds of rights. Again, I'll recommend this article about different kinds of rights (I really don't make this stuff up):

http://uichr.uiowa.edu/features/eb/weston4.shtml

Particularly helpful in this regard is the notion of three "generations" of human rights advanced by the French jurist Karel Vasak. Inspired by the three themes of the French Revolution, they are: the first generation of civil and political rights (liberté); the second generation of economic, social, and cultural rights (égalité); and the third generation of solidarity rights (fraternité). Vasak's model is, of course, a simplified expression of an extremely complex historical record, and it is not intended to suggest a linear process in which each generation gives birth to the next and then dies away. Nor is it to imply that one generation is more important than another. The three generations are understood to be cumulative, overlapping, and, it is important to note, interdependent and interpenetrating.

A "liberty" right is just not the same kind of animal as an "equality" right. Liberty rights are meant to protect the individual from intrusive action by the collectivity; equality rights are meant to enable individuals to participate in, and share in the benefits of membership in, the collectivity.

In the 18th century, the "right to life" was regarded in terms of "liberty" -- the right not to be killed by the state. We (at least out here) take a more expansive view of it these days. Ditto for the right to liberty -- we no longer regard it simply as the right not to be locked up by the state, we regard it as encompassing the liberty to live according to one's own preferences without interference or adverse consequences.

Another passage I would quote on point, from Madam Justice Bertha Wilson of the Supreme Court of Canada in the 1988 decision striking down Canada's abortion law; she is specifically addressing the "rights" needs of women, but the concept is generalizable to the expansion of the concepts I am talking about (all underlining mine):

http://www.lexum.umontreal.ca/csc-scc/en/pub/1988/vol1/html/1988scr1_0030.html

As Noreen Burrows, lecturer in European Law at the University of Glasgow, has pointed out in her essay on "International Law and Human Rights: the Case of Women's Rights", in Human Rights: From Rhetoric to Reality (1986), the history of the struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus. The more recent struggle for women's rights has been a struggle to eliminate discrimination, to achieve a place for women in a man's world, to develop a set of legislative reforms in order to place women in the same position as men (pp. 81-82). It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women's needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman's struggle to assert her dignity and worth as a human being.

Your founders & framers, like rich white guys everywhere and in every time, were not concerned about their ability to have enough to eat, or the ability to participate in their society so as to acquire the means to earn the money to buy it and achieve recognition as persons with dignity and worth. They controlled those means. They had dignity and worth by virtue of their status.

They were concerned about being able to defend themselves and what was theirs against someone (individual or state) trying to harm them or take their stuff. I, and masses of other people in this century, are at least equally concerned about people having at least some minimal degree of security -- equality of opportunity to stay alive, and of access to the means to live and to live in dignity.

And while unregulated firearms possession may serve the first purpose, it simply does not always serve the second. Allowing every kind of firearm to be possessed, kept, handled and carted around by anyone who so chooses, in whatever way s/he chooses, as insurance against the possibility that someone will try to harm him/her or take his/her stuff, simply jeopardizes so many more people's ability to stay alive, and the quality of that life -- the security they need in order to pursue their own goals and aspirations, in the exercise of their own rights -- that limitations on firearms possession are justified.

I don't expect you to share my (and millions of others') views about the nature and content of rights. If you did, I wouldn't necessarily expect you to share my conclusions about the justifiability of any particular limitations on those rights. These are matters about which there will always be differences of opinion, and no one will ever be proved "right", if only because we are *all* starting from a position on the very concept of "rights" for which we have absolutely no basis.

But the mere fact that a bunch of guys got together and wrote something down on paper does NOT mean that they, or what they wrote, has has any more authority in terms of those concepts than anything you or I or anyone else might say. It has authority in terms of the governance of the US, and so the exercise of interpreting it is obviously of considerable concern to citizens of that country.

Because the US uses its second amendment to resist initiatives at the international level, one might say that it is of *some* concern to me, but really all I need to say is that the basis on which the US resists those initiatives is of no concern to me and not likely something that any opinion I (or any other furriner) might have would have the slightest effect on, so all in all, it just is not something that I have any need to pursue any further, even though I might at some point decide to do so (e.g. by reading all the interpretive aids you refer to) as a purely intellectual exercise, should I have the time and inclination.

And my final note to the cheap seats: since y'all must by now understand how infinitely uninterested in your opinions of me I am, you will also understand that any commentary you offer on the subject of me, rather than of what I have said, will be taken by me as just another entry in that circle-jerk activity that seems so popular among some hereabouts who are apparently much more easily entertained and impressed by such commentary than I.

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