Comments on: Supreme Court Confronts the ‘Right to Bear Arms’ http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/ Conservative and Libertarian Intellectual Philosophy and Politics Wed, 08 Feb 2012 23:00:53 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: sedonaman http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/comment-page-1/#comment-71751 sedonaman Wed, 09 Apr 2008 21:25:59 +0000 http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/#comment-71751 Joseph BH McMillan/; "...perhaps the ‘right’ being exercised by the State, rather than the People..." Just a fine point here. The State doesn’t have rights; only persons have rights. The State has only authority. Since the Second Amendment is part of the Bill of Rights [of persons or people], IMHO, this couldn’t be used to argue only the State has the "right" to bear arms. As I have indicated before, no other country to my knowledge needs a "Second Amendment" authorizing it to bear arms. But then again, anything can be rationalized within the law. Joseph BH McMillan/;
“…perhaps the ‘right’ being exercised by the State, rather than the People…”

Just a fine point here. The State doesn’t have rights; only persons have rights. The State has only authority. Since the Second Amendment is part of the Bill of Rights [of persons or people], IMHO, this couldn’t be used to argue only the State has the “right” to bear arms. As I have indicated before, no other country to my knowledge needs a “Second Amendment” authorizing it to bear arms.

But then again, anything can be rationalized within the law.

]]> By: Bob Stapler http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/comment-page-1/#comment-71734 Bob Stapler Tue, 08 Apr 2008 17:27:28 +0000 http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/#comment-71734 I am glad to see there is, at least, one free-thinker at the so-called Independent Institute. I was beginning to think it was a 'liberals only' club (conservatives need not apply). I don't mind a think-tank being liberal, but it shouldn't then masquerade as non-partisan. There are two ways to run a non-partisan establishment. One is to staff the place with equal numbers of partisans, the other is to staff it with people who ridiculously straddle the fence while avoiding giving offense. Most of what I've read both here and at that site (by I.I. authors) is, in fact, overwhelmingly liberal. I will grant most I.I. writers points for scholarship (even where it tends to cherry-picking), and suppose they really do believe themselves more non-partisan than they write. We've seen, for example, a good deal of Mr. Eland's stealth partisanship in recent weeks in regard to Iraq. Suffice it to say Dr. Halbrook makes a refreshing exception to this rule. He has presented arguments and tactics for both sides, even while making known his own feelings in the matter. If he writes this frankly over at I.I., he must be under considerable pressure from his collegues. Bravo! I am glad to see there is, at least, one free-thinker at the so-called Independent Institute. I was beginning to think it was a ‘liberals only’ club (conservatives need not apply). I don’t mind a think-tank being liberal, but it shouldn’t then masquerade as non-partisan. There are two ways to run a non-partisan establishment. One is to staff the place with equal numbers of partisans, the other is to staff it with people who ridiculously straddle the fence while avoiding giving offense.

Most of what I’ve read both here and at that site (by I.I. authors) is, in fact, overwhelmingly liberal. I will grant most I.I. writers points for scholarship (even where it tends to cherry-picking), and suppose they really do believe themselves more non-partisan than they write. We’ve seen, for example, a good deal of Mr. Eland’s stealth partisanship in recent weeks in regard to Iraq. Suffice it to say Dr. Halbrook makes a refreshing exception to this rule. He has presented arguments and tactics for both sides, even while making known his own feelings in the matter. If he writes this frankly over at I.I., he must be under considerable pressure from his collegues. Bravo!

]]> By: Joseph BH McMillan http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/comment-page-1/#comment-71712 Joseph BH McMillan Sat, 05 Apr 2008 13:43:47 +0000 http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/#comment-71712 Sedonaman, perhaps the ‘right’ being exercised by the State, rather than the People, could be a barometer of dictatorship? The only problem with that is that most countries of the world would come within the definition! Joseph BH McMillan www.freedomvrights.com Sedonaman, perhaps the ‘right’ being exercised by the State, rather than the People, could be a barometer of dictatorship?

The only problem with that is that most countries of the world would come within the definition!

Joseph BH McMillan http://www.freedomvrights.com

]]> By: sedonaman http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/comment-page-1/#comment-71707 sedonaman Fri, 04 Apr 2008 15:32:05 +0000 http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/#comment-71707 Requiring an individual to belong to a militia in order to "keep and bear arms" would be like requiring an individual to work for a newspaper in order to exercise any free speech rights. Chief Justice John Roberts' comment, “That would be an odd ‘right of the people’ if limited to militias” is right on target (no pun intended) because even people living under dictatorships have this right. Requiring an individual to belong to a militia in order to “keep and bear arms” would be like requiring an individual to work for a newspaper in order to exercise any free speech rights.

Chief Justice John Roberts’ comment, “That would be an odd ‘right of the people’ if limited to militias” is right on target (no pun intended) because even people living under dictatorships have this right.

]]> By: Joseph BH McMillan http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/comment-page-1/#comment-71697 Joseph BH McMillan Thu, 03 Apr 2008 14:38:26 +0000 http://www.intellectualconservative.com/2008/04/03/supreme-court-confronts-the-%e2%80%98right-to-bear-arms%e2%80%99/#comment-71697 DearMr Halbrook, This is a revised version of a Comment I left to a previous article: “The right of the People to keep and bear Arms” is about the only remaining ‘right’ that has any semblance of ‘substantive’ content. To whittle it down in any way would reduce it to the level of our other ‘rights’ – a ‘procedural expectation’. Hopefully you are right, and the Court is leaning towards overturning the ‘ban’. But it seems that the proponents of the ban have been less than ‘creative’ in their arguments. The Brief could simply have argued that the ‘right’ to bear arms is realized through the elected representatives of the People ‘arming’ law enforcement authorities. That would neatly get round the “shall not be infringed” provision. The Brief could thus have argued that the peoples’ ‘right’ is exercised by ‘proxy’. The rationale would be that the ‘right’ is ‘defined’ and ‘limited’ by the provision “being necessary to the security of a free state”. If the argument were put that way, the ‘right’ as we know it would simply disappear. The Court would have to ask itself how the ‘right’ to bear arms could most effectively be implemented in order to achieve the ‘objective’ of preserving the “security of a free state”. From there it would a simple matter to assert that the “security of a free state” requires, even demands, that arms be kept out of the hands of ordinary citizens (because unrestricted possession of arms could be ‘threat’ to the “security of a free state”), and that the ‘right’ be reserved to law enforcement which would “keep and bear Arms” on behalf of the People in the interests of preserving “the security of a free state.” Of course, I would strongly disagree with such an interpretation, but we should make no mistake about it, it is coming – if not now, then soon. The European Court of Human Rights (ECHR) in the case of Konrad and Others v Germany applied precisely such an argument when upholding Germany’s prohibition of Homeschooling. The ECHR said this: “any interference [with rights to family life, education, freedom of thought, etc] would …be justified as being provided by law and necessary in a democratic society and in the public interest of securing the education of the child.” [I refer to this case in my book Freedom v A Tyranny of Rights] Simply substitute the bearing of Arms into that reasoning, and the ‘right’ to “keep and bear Arms” is gone. It could go like this – ‘any interference with the “right of the people to keep and bear Arms” would be justified as “being necessary to the security of a free state”, and the ‘right’ would thus be exercised on behalf of the people through the arming of law enforcement officers appointed by the state for that purpose – the preservation of “the security of a free state”’ Joseph BH McMillan www.freedomvrights.com DearMr Halbrook,

This is a revised version of a Comment I left to a previous article:

“The right of the People to keep and bear Arms” is about the only remaining ‘right’ that has any semblance of ‘substantive’ content. To whittle it down in any way would reduce it to the level of our other ‘rights’ – a ‘procedural expectation’.

Hopefully you are right, and the Court is leaning towards overturning the ‘ban’.

But it seems that the proponents of the ban have been less than ‘creative’ in their arguments. The Brief could simply have argued that the ‘right’ to bear arms is realized through the elected representatives of the People ‘arming’ law enforcement authorities. That would neatly get round the “shall not be infringed” provision. The Brief could thus have argued that the peoples’ ‘right’ is exercised by ‘proxy’. The rationale would be that the ‘right’ is ‘defined’ and ‘limited’ by the provision “being necessary to the security of a free state”.

If the argument were put that way, the ‘right’ as we know it would simply disappear. The Court would have to ask itself how the ‘right’ to bear arms could most effectively be implemented in order to achieve the ‘objective’ of preserving the “security of a free state”.

From there it would a simple matter to assert that the “security of a free state” requires, even demands, that arms be kept out of the hands of ordinary citizens (because unrestricted possession of arms could be ‘threat’ to the “security of a free state”), and that the ‘right’ be reserved to law enforcement which would “keep and bear Arms” on behalf of the People in the interests of preserving “the security of a free state.”

Of course, I would strongly disagree with such an interpretation, but we should make no mistake about it, it is coming – if not now, then soon.

The European Court of Human Rights (ECHR) in the case of Konrad and Others v Germany applied precisely such an argument when upholding Germany’s prohibition of Homeschooling. The ECHR said this: “any interference [with rights to family life, education, freedom of thought, etc] would …be justified as being provided by law and necessary in a democratic society and in the public interest of securing the education of the child.” [I refer to this case in my book Freedom v A Tyranny of Rights]

Simply substitute the bearing of Arms into that reasoning, and the ‘right’ to “keep and bear Arms” is gone. It could go like this – ‘any interference with the “right of the people to keep and bear Arms” would be justified as “being necessary to the security of a free state”, and the ‘right’ would thus be exercised on behalf of the people through the arming of law enforcement officers appointed by the state for that purpose – the preservation of “the security of a free state”’

Joseph BH McMillan http://www.freedomvrights.com

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