We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

From Magna Carta to Surveillance State

There is an excellent article on the Social Affairs Unit blog called Civil liberties cannot be defended selectively, by Joyce Lee Malcolm.

As the culture and meta-contextual assumptions of liberty have decayed amongst the intellectual and activist elements of British society, the institutions supporting liberty for so long have been revealed to have no foundations and are thus unable survive the torrent of events such as Hungerford or even the 9/11 terrorist attacks in another country.

As the Joyce Lee Malcolm article points out, the so called ‘opposition’ and even the vast majority of the media have abdicated their role in seriously questioning the disassembly of ancient civil rights for decades, whilst the rights to self-defence, trial by jury and double jeopardy are steadily abridged. It is hard to avoid the conclusion that the British system, which for so long survived and thrived by using the custom of liberty as its bedrock, has shown its fatal weakness. Defending civil liberties in the UK is becoming harder and harder because not only have the institutional means for doing so been effectively swept away, so few British people even understand upon what their now largely illusory liberties were based.

100 comments to From Magna Carta to Surveillance State

  • Euan Gray

    There are no rights or liberties enjoyed by the British people that cannot be taken away by Parliament. This is a necessary consequence of the doctrine of the supremacy of Parliament.

    The alternative is a written constitution to which Parliament is subordinate. This would profoundly change so many things in the British way of government and administration of law that it would be nothing short of a revolution. It is unlikely to happen. Even if it were, the existence of a written constitution is not much more of a guarantee, as is shown by the hysterical over-reaction of the US government to its discovery of the phenomenon of terrorism.

    Pragmatically, rights granted for good reason in one era may not have much justification in another. Whilst there is no reason to suspect this necessarily applies to the concepts of habeas corpus, prohibition of bills of attainder and double jeopardy (which are fundamental), it can apply to things such as the right to bear arms, the right to jury trials or (in some cases) revelation of prior convictions.

    Given that Parliament is supreme, and that the British people aren’t terribly keen on revolution, the answer is to use the democratic process. So many people who lament the state of British politics and government refuse to vote, but perhaps if they did engage with the process they might be able to change things. They must, of course, recognise that it is necessary to persuade people of their case, and that they will not achieve everything they want. Certainly, however, they will achieve nothing by staying at home and refusing to play.

    EG

  • Bernie

    You have shown yourself to be an excellent example of Perry’s point Euan.

  • Euan Gray

    But at least I vote.

    EG

  • And so which particular liberty did you preseve when you voted, Euan? If I want to take a stand in a meaningful way rather than just which legitimise which form of poison I get to drink, who do you suggest I vote for?

  • Euan Gray

    And so which particular liberty did you preseve when you voted, Euan?

    The liberty to vote, of course. I did not single-handedly preserve the right, of course, but I added my voice to the millions of others who consider it important.

    Both England and America had revolutions over the cause of representative government. In each case, the result was the decline of arbitrary government and the rise of participatory democracy. Many people today bemoan the increasingly arbitrary nature of government in each of these countries, yet a substantial number of them can’t be bothered to use the process intended to check this trend, or in some cases actively refuse to do so. This fall in voter turnout is unhealthy for the political structure of the nation, and in turn for society in general. Whatever may be thought, all the major political parties see this as a big problem.

    If I want to take a stand in a meaningful way rather than just which legitimise which form of poison I get to drink, who do you suggest I vote for?

    Many libertarians seem to denigrate the voting process because it will not deliver precisely what they want. Because one cannot get everything one demands, the logic seems to be, there is no point in voting.

    We live in a society, claims that there is no such thing notwithstanding. In any society, the rules must inevitably be a compromise. There are in this society libertarians who demand complete personal autonomy and freedom from government – but there are also communists who would subject every aspect of the country and personal life to overt and complete state control. We don’t have a communist government because few people are communist – and we don’t have a libertarian one because again few people are libertarian. The libertarian would naturally consider it unfair if he were to be subject to the Marxist dictates of a small clique of communists, and must by the same token accept that non-libertarians (an overwhelming majority of the people) would consider it unfair if they were to be subjected to the type of policy the libertarian advocates.

    Politics is a series of compromises. Democracy, Parliament and the voting process are also and necessarily a series of compromises. You cannot get everything you want. Nobody can, otherwise communists, nazis, enviro-loonies and the LibDems would have a shot at power. You have to accept compromise and realise that government is at best going to be a broad consensus among those who vote. The realistic alternative is dictatorship, since the libertarian ideal of minimalistic (or no) government is NOT going to happen, simply because hardly anyone thinks it at all sensible. Those who do not vote forgo the opportunity to have the slightest influence in this process, and so in my view have no right to moan about it.

    It is not for me to advocate a particular party for which to vote, although my sympathies are probably obvious enough. I would far prefer that you just voted. Spoil your ballot if you want, but I urge you – and everyone else – to cast a vote one way or another.

    As I have observed before, it is far easier for the state to revoke a right when that right is rarely exercised. The lower the voter turnout, the easier it is for politicians to ignore the wishes of the people. Vote for anyone or for no-one, but vote, exercise your right, and help prevent politicians doing this. You will not, alone, make all the difference, but you will contribute something to the matter. If you refuse to vote, you won’t.

    EG

  • Spoil your ballot if you want, but I urge you – and everyone else – to cast a vote one way or another.

    Sorry but I just cannot respect that. The right to vote means nothing if the system offers you no choice at all.

    You have to accept compromise and realise that government is at best going to be a broad consensus among those who vote.

    No, I don’t have to ‘accept’ compromise because I cannot see any compromise at all.

    I would rather just order my affairs as best I can to avoid the powers I cannot live with (by doing such legal things such as keeping money and biz out of the country so it cannot be reached or regulated by whatever democratically sanctified theives you vote for).

    Blather about ‘we live in a society’ means exactly nothing as I often point out that replacing social interactions with political interactions tends to fuck things up more often than not… I am well aware we live in a society. I also know we breath oxygen and eat food. Not to be unduly hostile but can you please not lecture me like some high school student?

    communists, nazis, enviro-loonies and the LibDems would have a shot at power

    Sure… which is why generally it is pointless for THEM to vote too. The whole things is absurd.

  • Euan Gray

    The right to vote means nothing if the system offers you no choice at all.

    How does it offer you “no choice at all,” Perry? Because you cannot cast a vote and necessarily get everything you want?

    If you want a libertarian option at an election, then you can work within an established party to make it more libertarian, or you can start your own party. If you refuse to do either of these things, it does seem rather silly to decry the system as offering no choice – the remedy is in your own hands, not those of others.

    I don’t have to ‘accept’ compromise because I cannot see any compromise at all

    So what’s your definition of compromise – you get what you want and everyone else can vote for anyone else? This is not going to happen, either here or in the US. It is unreasonable to demand that it happens just because you want it to. The only way this would make sense is if we already had a libertarian system. We aren’t going to get one any time soon, because only a tiny number of people think it is workable or desirable. This is the part I think you need to accept – the vast majority of people show no sign whatever of wanting a libertarian society.

    If you wish to function within society, you need to observe the rules of that society. If you do not like the rules, you can make the case that they should be changed, but you must accept that if the rest of society disagrees with you then the change will not happen. You are free to object, and society is free to overrule your objection – this is the democratic political compromise. If you cannot live with this, then there is of course nothing preventing you leaving altogether – as I understand is your intention.

    There is a third option, which is to put your money where your mouth is and set up a libertarian society (or as close thereto as you can practicably get). I am aware that previous attempts to do this, such as Minerva, have ended in acrimony, dispute and fraud. There is, however, no reason why it cannot be done. Religious communities have managed to collect the funds to buy land and set their own rules, observing the minimum possible state and federal law they have to. It works for them, why wouldn’t it work for libertarians? Do you not think that if this were done and proved a great success then the rest of the world would sit up and pay attention to the libertarian cause?

    I often point out that replacing social interactions with political interactions tends to fuck things up more often than not

    I agree completely, which is why the politically inspired interference in society needs to be limited – but this will not be done by refusing to vote. If you want to limit the effects of the process, you need to take part in the process. Complaining from the sidelines won’t achieve anything.

    I am well aware we live in a society

    Correct me if I’m wrong, but I thought you held that there was no such thing as society? That is why I laboured the point somewhat.

    Not to be unduly hostile but can you please not lecture me like some high school student?

    I do not mean to be rude either, but I do have to say that if you approach the matter like a petulant teenager who cannot have his own way, then a certain amount of this is inevitably going to happen.

    In summary, there are choices. If you don’t like them, there is nothing preventing you offering your own or even creating your own society – but it is unreasonable to expect the rest of society to revolve around the miniscule minority that is libertarian.

    EG

  • Because you cannot cast a vote and necessarily get everything you want?

    I cannot get anything I want within a system heading in the opposite direction. And the idea that starting up a libertarian party in the UK within that system is empowering is laughable.

    And please, stop saying ‘society’ when you are talking about political systems.

    I am indeed intending to abandon the UK when I can, heading for New Hampshire(Link).

    Correct me if I’m wrong, but I thought you held that there was no such thing as society?

    Huh? My constant drumbeat is for prefering social mechanisms to political ones. That does rather suggest I do indeed think there is such a thing as society, though it is just the sum of its parts, not something with a greater emergent value.

  • Euan Gray

    And the idea that starting up a libertarian party in the UK within that system is empowering is laughable

    Why? It’s how democracy works, after all. The same logic you use would say that starting up a UK Indpendence Party would be laughable because the system is trending towards closer integration with the EU. So far the UKIP has not proved laughable (although whether it will have much long term impact is another question).

    And please, stop saying ‘society’ when you are talking about political systems

    I don’t mean a political system is society. I mean the political system is just one of many things which taken together make up society.

    That does rather suggest I do indeed think there is such a thing as society, though it is just the sum of its parts, not something with a greater emergent value.

    OK, I understand your view now. I still disagree, of course. Any society is greater than simply the sum of its parts, since it enables the achievement of things the individual members could not do separately – this applies to companies, the local fishing club and wider civil society. Ten individuals making widgets would produce more widgets more efficiently if they combined into a single company (which is a society). They could also raise more investment capital collectively than the total of their individual efforts. Ten anglers will prosper more as a club than as individuals, since they can spread the cost of expensive equipment and negotiate better deals for fishing rights collectively than the total of their individual efforts. And so on.

    The reason that individuals form companies, groups, clubs and societies (or society) is precisely because that society IS something greater than the sum of its parts. If it was not, why would they bother?

    EG

  • Andrew Duffin

    Euan Gray wrote:

    “The alternative is a written constitution to which Parliament is subordinate. This would profoundly change so many things…that it would be nothing short of a revolution. It is unlikely to happen.”

    Erm, excuse me, but what do you think the European Constitution is?

    Unlikely to happen? I think not. Pretty much certain to happen, I submit. A done deal, almost certainly.

  • Euan Gray

    Unlikely to happen? I think not. Pretty much certain to happen, I submit. A done deal, almost certainly

    I don’t know. I do not think the EU is workable in principle as a state without a central strong culture, which it lacks. As a voluntary confederation of independent trading states, it can of course work perfectly well. I do not really expect the EU constitution to be adopted, certainly not in its present form. Even if it is, the persistent decline of the “Old Europe” economies is soon enough going to lead to major change as the current economic model is simply not sustainable in the longer term.

    And, of course, a British exit is always perfectly possible at any time – all that is necessary in law is a simple vote by both houses of Parliament.

    EG

  • Johnathan

    Euan Gray, in his first comment, says there are no rights and liberties that cannot be taken away by a sovereign British parliament. True. But the complacent Mr Gray fails to realise that this is a relatively recent aspect of the British political order, dating back no more than about 100 years.

    In any event, the Unlimited Sovereignty Model (damned by Tocqueville as “the tyranny of the majority”) is of relatively recent origin in the United Kingdom. Up until the arrival of the mass franchise in the early 20th century, there were fairly heavy checks and constraints on parliamentary power. The courts and House of Lords exercised a strong constraint.

    Unlike some little Englander Tories, I have no sentimental attachment to the idea of a totally sovereign parliament. Without checks and balances, the system is bound to lead to uncontrolled growth in state power, and the fact that one gets to kick out the monkeys in control every five years or so is not much consolation, which even the indefatigible Mr Gray might understand.

  • Euan Gray

    But the complacent Mr Gray fails to realise that this is a relatively recent aspect of the British political order, dating back no more than about 100 years

    Incorrect. It actually dates back to the late 1680s when the supremacy of Parliament over the Crown was asserted with some finality – aided by army support and the acquisition of a suitably pliant foreign king. The supremacy of Parliament has never been successfully challenged since 1689. There has never been any mainstream concept in British law that sovereignty is vested in the people, nor for that matter in the concept of natural rights.

    In any event, the Unlimited Sovereignty Model (damned by Tocqueville as “the tyranny of the majority”) is of relatively recent origin in the United Kingdom

    This is, of course, a completely different question. It is of relatively recent origin in ALL western states. However, it does not relate to the supremacy of Parliament.

    there were fairly heavy checks and constraints on parliamentary power. The courts and House of Lords exercised a strong constraint

    The House of Lords is also part of Parliament. Parliament, as you no doubt know, is shorthand for “the Queen, in Parliament with the Lords and Commons assembled.” It is this combination which is supreme in law.

    The Lords do still offer some check on the power of the elected house, but not as much as 100 years ago. The Lords has an absolute veto on legislation extending Parliament. The Queen still has the ultimate restraint, in that she can refuse to dissolve Parliament (and intimated this would be done if in 1974 Wilson had tried for a third election), can appoint a prime minister (Macmillan, the Earl of Home), can withold assent from bills prolonging a Parliament, can insist that Parliament dissolve and can if necessary order military force to dissolve it if it refuses to go.

    The courts still exercise constraint, in that the rule of law exists in the UK and the government can be (and quite often is) decided against by the courts.

    Without checks and balances, the system is bound to lead to uncontrolled growth in state power, and the fact that one gets to kick out the monkeys in control every five years or so is not much consolation, which even the indefatigible Mr Gray might understand

    Indeed. It is said repeatedly that democracy is the worst form of government apart from all the others. Any democratic system is flawed, but the alternatives have even worse defects. Perhaps you’d prefer dictatorship? Possibly the Roman expedient of the triumvirate or decemvirate? An aristocracy? Anarchy, which would very soon become feudalism and then revert to the state system anyway? A limited state, which would soon enough become unlimited once more?

    The problem is that one cannot produce a system which guarantees limited government in perpetuity. A written constitution can be amended, circumvented or just plain scrapped. Dictators are overthrown, monarchs cannot guarantee the stability of their successors, aristocracies and oligarchies become corrupt, democracies fall prey to the greed of the people, anarchy gives way to more effective and efficient systems and subsequent generations will always reinterpret the intent of the founders to suit contemporary needs.

    In any case, assumptions valid in one period aren’t necessarily valid in another. I completely agree that things need to change somewhat in this country, but I also accept that this must be done with the consent (or at least lack of overt dissent) of a majority of the people. Simply advocating a reversion to earlier practice is insufficient, since one must justify why that earlier system will still work now – it may not, since cirumstances change.

    For all its numerous faults and failings, democracy is about the best (or least worst) plausible system. It requires participation, and if people object to the way things are going they can stand up and say so, put their case to the people and try to persuade them. They must accept that if the majority of people disagree, that’s it. But it doesn’t mean they cannot keep trying to persuade, of course.

    Doing nothing other than moaning about it will achieve precisely zero.

    EG

  • This is an excellent blog. I really enjoy reading most of the posts, but I particularly enjoy EG’s comments.

  • Any democratic system is flawed, but the alternatives have even worse defects. Perhaps you’d prefer dictatorship?

    Constitutional republic. The importance of constraining democratic politics is hard to over state.

  • Euan Gray

    I really enjoy reading most of the posts, but I particularly enjoy EG’s comments

    You’re too kind, really. But I will try not to be offended ;-)

    Constitutional republic. The importance of constraining democratic politics is hard to over state.

    See above re written constitutions. America is a constitutional republic, but this has not prevented the growth of the state and intrusive regulation. France and Germany are constitutional republics, ditto on growth of state. There are many other examples.

    Even if you create a constitutional republic to constrain democracy, that constitution must have some mechanism for amendment. If it doesn’t, it will not last. Things change, and even if it made sense now to, for example, constrain state expenditure to 20% of GDP, we are unable to predict the future and it may be that this is not a sensible policy 50 years from now. 200 years ago it made sense to prohibit Catholics from voting – there were at the time perfectly sound strategic/political reasons for this – but we can hardly say this is still the case. Any written constitution must, therefore, have the flexibility to cope with radically changed circumstances by means of amendment, and in this flexibility there is a weakness in that it might be amended quite lawfully to return to a mass franchise, welfare expenditure and big government. You cannot build a system which prohibits this permanently – at least, not one that lasts.

    The big state and heavy welfare expenditure are not strictly results of the form of government we have, since they afflict constitutional republics like America and France, democratic monarchies like Holland and Belgium, and nonconstitutional republics-in-all-but-name like Britain. Rather, they are a result of (a) the response to rise of socialism in the nineteenth century in part as a reaction to industrialisation and aggressive capitalism, and (b) the modification by closer regulation of capitalism from about 1880 onwards to mitigate the excesses of laissez-faire. Some of this will pass, but not all of it.

    There is no doubt whatsoever that one can have a successful and growing regulated capitalist economy – America and Britain prove this most of all, but so do most westernised economies. It is almost certain that significantly greater economic growth could be achieved, at least in the short term, by complete deregulation (but at the expense of increasing inequality of wealth and a more polarised society) just as it is certain that excessive regulation (as in France or Germany, most notably) depresses or stops growth.

    However, the pursuit of maximum economic efficiency is both unnecessary and unpopular. A satisfactory and steadily improving standard of living, coupled with the avoidance of gross disparity of wealth and power, is perfectly possible without needing maximum efficiency. Since the overwhelming majority of people don’t want the disparity and will sacrifice a little growth to avoid it, this is what happens. Maximum efficiency is not on any serious political agenda, and it simply isn’t going to happen – it’s possible, but since it is unnecessary and nobody outside a fringe actually wants it, it won’t happen any time soon.

    A certain amount of regulation is therefore inevitable, and, at least as far as popular opinion is concerned, unavoidable. Complete deregulation will not happen, and to insist upon it consigns one to the the loony fringe of politics. What CAN happen is a reduction in petty regulation where it isn’t necessary. This is the best libertarians are going to get unless, as pointed out repeatedly before, they take it upon their own initiative to demonstrate to a frankly very sceptical world that it works by building their own unregulated society.

    EG

  • Johnathan

    Euan Gray, I know that the House of Lords is part of Parliament, thanks very much. I was making the point about a balanced constitution. As for the idea that the doctrine of natural rights has never been part of the British political order, what about the Bill of Rights signed after the Glorious Revolution, then? Or the ideas of John Locke, which later transferred across the Big Pond to underpin the ideas of America’s Founding Fathers?

    Your statement at the top of this thread that a sovereign parliament has the power to scrap the rights and liberties of citizens at a stroke may now be true, as seen by the complete disregard for such liberties as displayed by Messrs Blair and Howard. That does not mean that such men can, as you seem to imply, that they are acting in accordance with long-standing principles of British governance. In any event, the doctrine of parliamentary supremacy trumping any other principles is one which needs to be challenged, which is why I also commend folk to read Joyce Lee Malcolm’s excellent piece and ignore the sort of authortarian “pragamatism” of the Euan Grays of this world.

  • Euan: feel free to be as offended as you like:-)

  • Johnathan Pearce

    Euan is right that constitutions are not an automatic barrier against growth of state power and need to be flexible enough to change. True. Liberties cannot be secured unless there is broad agreement among most people about what the proper constraints on government should be and in the absence of that, a constitution is just a piece of paper with nice words on it, like the Soviet constitution. But as the Soviet Union demonstrated, the key to a free society is separation of powers among a wide body of institutions, married to a strong liberal culture

    Alas, the spread of collectivist ideology, base greed and desire for the unearned fruits of other people’s wealth have meant that state power has exploded over the past century or more. We libertarian “loonies” are trying to change that culture, obviously to the bemusement of patronising folk like Mr Gray and his complacent ilk.

    And as for voting protecting liberties, while I don’t devalue the franchise, claiming that using a vote every few years ago can somehow protect freedoms is pretty naive. The crackdown on civil liberties post-9/11 is proof of that.

  • Euan Gray

    As for the idea that the doctrine of natural rights has never been part of the British political order, what about the Bill of Rights signed after the Glorious Revolution, then?

    These events have to be seen in the context of their time, not in the light of what we think today.

    The so-called “Glorious Revolution” was a mainly peaceful removal of a Catholic king and his replacement by a compliant Protestant foreigner, expressly to avoid a repetition of the real revolution and civl war of the 1640s. Little to do with natural rights, lots to do with a refusal to countenance Catholicism & the rejection of the concept of the divine right of kings and quite a bit to do with the fact that the army was not prepared to go through another civil war and more military government. The Bill of Rights is about securing the Protestant succession and the rights of Parliament (NOT the people), thus eliminating two of the major causes of the civil war.

    That does not mean that such men can, as you seem to imply, that they are acting in accordance with long-standing principles of British governance

    Parliament is supreme. A government with a majority in Parliament can do pretty much what it likes within the law, or create new law to enable it to do new things. Maybe you don’t like it, but this is the way it has been for over 300 years. Looking at the record of history, British government has by turns been liberal and authoritarian, populist and idealistic, insular and expansionist, radical and conservative. The only common element or “long-standing principle” would appear to be pragmatism.

    In any event, the doctrine of parliamentary supremacy trumping any other principles is one which needs to be challenged

    Well, it hasn’t been done since 1689. Anyway, what are you going to replace it with? Neither constitutional republics, constitutional monarchies, dictatorship, aristocracy nor anarchy seem much like improvements. Whatever system you propose can be undone because if it isn’t flexible enough to change it just won’t last, and if it is then it will change. This includes the concept of “natural rights,” which is a screw-up because (a) there ain’t no such thing and (b) no two people can agree on what they should be.

    The strength of the British system is that whatever one Parliament does, a successor Parliament can undo. Again this follows from the supremacy of Parliament – Parliament, being supreme, cannot be bound by a predecessor. It doesn’t depend on precedent terribly much, it isn’t bound by a strict constitution (which can be and inevitably would be subjectively reinterpreted at a later date), and it is wholly subject to the law and exigencies of the day. This depends on people actually using the system and voting, of course – if they don’t, and let things go by default, it’s their own problem.

    We libertarian “loonies” are trying to change that culture, obviously to the bemusement of patronising folk like Mr Gray and his complacent ilk.

    I’m not at all bemused. I know perfectly well what you are trying to do, and why you are trying to do it. Whilst I have some sympathy with some of your aims, I also know that you will fail to achieve your general aims of minimalist (or no) government and a laissez-faire economy. For good or ill, only a miniscule number of people share your aims and therefore they will not willingly be adopted. To insist on all or nothing, as many (but not all) libertarians do, is folly – you will end up with nothing. You can try to change some things and remove some regulation, and to that extent I agree with you, but anything more is just not going to happen. You certainly won’t get laissez-faire (the world has moved on from that), you won’t get minarchy or anarchy (because nobody else wants them), and you won’t get complete personal liberty or autonomy (because it’s impossible).

    claiming that using a vote every few years ago can somehow protect freedoms is pretty naive

    If you DON’T use the vote, it is easier for the state to ignore what people think. If you DO use the vote, that in itself isn’t a guarantee of much, but if a large proportion of the people continually use their votes then the government understands that the idea of democracy and not overriding the clear will of the people is strong, and thus harder to ignore.

    The crackdown on civil liberties post-9/11 is proof of that.

    No, it’s proof that having a constitutional republic is no guarantee of any ability to restrict the size and scope of the state.

    EG

  • See above re written constitutions. America is a constitutional republic, but this has not prevented the growth of the state and intrusive regulation. France and Germany are constitutional republics, ditto on growth of state. There are many other examples.

    But then not all constitutional republics are created equally. The USA has been far more successful at restricting the growth of the state than in most other first world state. Please spare me a lengthy lecture about the areas in which the US state is very intrusive as I am probably more aware of them than you are, but nevertheless the US constitutional system, for all its many flaws, does indeed provide a method for constraining state excesses in ways few other nations have done, most notably the effectiveness of the First Amendment and Second Amendments at avoiding large tyrannous leaps like those which happened in the UK, e.g. the UK making ‘hate speech’ illegal (which has already been extended to jokes about Welshmen and homosexuals and making critical remarks about Islam), and simply outlawing all private handguns, plus semi-automatic and pump action longarms).

  • snide

    If you DON’T use the vote, it is easier for the state to ignore what people think. If you DO use the vote, that in itself isn’t a guarantee of much, but if a large proportion of the people continually use their votes then the government understands that the idea of democracy and not overriding the clear will of the people is strong, and thus harder to ignore.

    Manifestly untrue. A large proportion of the population would vote for a rabbit in a top hat if he was packaged correctly. It is activist minorities who actually matter. Moreover you do not oppose a system by legitimising it. Millions trade outside the system in grey andblack economies and that demonstrates the limits of politics far better than idiotically voting when there are no meaningful choices to choose from.

  • Euan Gray

    But then not all constitutional republics are created equally

    So how would you frame your constitution to avoid the problem? What specific restrictions would you place on the state, and how would you ensure these could never be overruled, i.e. how would you make them absolute and irrevocable?

    spare me a lengthy lecture about the areas in which the US state is very intrusive

    I had no intention of doing this. Suffice it to say, as you are no doubt aware, the US is more intrusive in some respects than the UK and less in others. But that doesn’t mean much, since one could say pretty much the same for any comparison of two first world states.

    the US constitutional system, for all its many flaws, does indeed provide a method for constraining state excesses in ways few other nations have done

    I don’t deny it, but it can hardly be said that the US system has prevented a massive burgeoning of the state and intrusive regulation. Furthermore, don’t overlook WHY the pressure exists for these things to happen.

    the UK making ‘hate speech’ illegal (which has already been extended to jokes about Welshmen and homosexuals and making critical remarks about Islam)

    You exaggerate somewhat, but not all that much. It is perfectly possible to make critical remarks about Islam, or indeed jokes about Welshmen, homosexuals, or even homosexual Moslems from Cardiff. The point is that if you do this is a manner likely to cause trouble, or with the clear intent of causing or inciting trouble, then you will find yourself in trouble. There is a difference between reasoned criticism (or humour) and gratuitous insult.

    outlawing all private handguns, plus semi-automatic and pump action longarms

    There is actually nothing in US law to prevent the government there doing exactly the same thing. Whatever may be thought, the right to keep arms under the second amendment is contingent and collective, not absolute and individual, and furthermore this is the way the American courts have consistently interpreted the amendment. This is why the pro-gun lobby rarely attempts to challenge the constitutional propriety of gun control law in the courts – it is simply not unconstitutional.

    However, this issue perhaps reinforces a point I made earlier in connection with voting – if you don’t exercise your rights, it’s a lot easier for the state to withdraw them:

    Some 30-40% of the US adult population owns at least one gun. Although there is no legal impediment to the US government banning handguns, it is very unlikely that any such government would try. Not because the armed population frightens the state (given the size and professionalism of the US armed services, the idea is absurd), but simply because the custom of gun ownership is so widespread in all sections of the population that a national ban would be grossly unpopular with a very large number of people and would be electoral suicide.

    In Britain, on the other hand, gun ownership never spread much beyond 1 or 2%. The vast majority of Britons are unfamiliar with guns, don’t like them and don’t trust the people who do like them. The electoral pirce of a ban is therefore minimal.

    Assert your rights, or don’t complain when they get taken away.

    EG

  • Euan Gray

    idiotically voting when there are no meaningful choices to choose from

    Then provide a service to democracy and offer yourself as this choice. The idiocy lies in bemoaning the lack of choice and simultaneously refusing to exercise your ability and indeed right to broaden that choice.

    EG

  • Johnathan Pearce

    Mr Gray’s dismissal of my point about the Bill of Rights after the Glorious Revolution proves that he is pretty selective when it comes to interpreting British political history if it does not chime with his authortarian political views. Obviously, this period of British history doesn’t quite fit with Euan’s concept of Total Parliamentary Sovereignty, a concept I find rather chilling and which would have horrified such great scholars of our constitutional history such as A.V. Dicey, Lord Acton or Edmund Burke, for example.

    EG’s says that a parliament can “do pretty much what it likes within the law”. (That is a good thing?) But according to Mr Gray, parliament defines and write the law, hence it can do what it likes “within the law”. Sounds like a circular, question-begging argument to me.

    It brings me back to the original reason for my complaint about EG’s defence of unlimited parliamentary sovereignty, which is that he acknowedges no constraint on such power. None whatsoever apart from being able vote occasionally.

  • So how would you frame your constitution to avoid the problem? What specific restrictions would you place on the state, and how would you ensure these could never be overruled, i.e. how would you make them absolute and irrevocable?

    Wrong questions. No system supporting liberty can survive unless there is a sufficient culture of liberty for appeal to. Building/defending a culture of liberty is the best way as nothing is ever absolute and irrevocable.

    Also Euan, you clearly know very little about the history of the defence of the Second Amendment or the subject at all judging by your sweeping statements about what is and is not constitutional. You also make my case for me on the importance of restraining democracy (as in the US) if you are serious about protecting liberty.

    In the UK, the notion that me voting would be prevented me being disarmed shows how daft your urging people to ‘just vote’ really is.

  • Euan Gray

    Building/defending a culture of liberty

    So how would you do this, then?

    Also Euan, you clearly know very little about the history of the defence of the Second Amendment or the subject at all judging by your sweeping statements about what is and is not constitutional

    Really? It is not my opinion of what is or is not constitutional. I am only stating precisely what the US courts have consistently held to be constitutional or not.

    The Supreme Court has ruled no fewer than four times that the right is collective rather than individual, and further that it is contingent on the issue of the militia:

    US vs Cruikshank in 1876;
    Presser vs Illinois in 1886;
    Miller vs Texas in 1894;
    US vs Miller in 1939 (presumably a different Miller)

    The Supreme Court has at no time ruled that it is an absolute or individual right. There are numerous rulings by subordinate federal courts which have, sometimes very assertively and always consistently, followed this line (and none which ultimately have not). No gun control legislation has ever been struck down for conflict with the second amendment. Washington DC’s gun ban has been tested a few times, and upheld as perfectly constitutional each time.

    Outside of partisan articles in law journals – and this is a recent phenomenon – the matter is simply not contentious: the right to keep and bear arms is NOT an absolute individual right. It is a collective right inextricably linked to the (state, not private) regulation of a militia, or in other words to state security.

    In the UK, the notion that me voting would be prevented me being disarmed shows how daft your urging people to ‘just vote’ really is

    Well, it would be if I had actually been arguing that. I wasn’t, so it isn’t.

    EG

  • Euan Gray

    Obviously, this period of British history doesn’t quite fit with Euan’s concept of Total Parliamentary Sovereignty

    In law, Parliament is supreme. There is no real debate on the matter. Parliament asserted its supremacy definitively in 1688-89, and it has never been successfully challenged since.

    concept I find rather chilling and which would have horrified such great scholars of our constitutional history such as A.V. Dicey

    Better read your Dicey again then. Dicey asserts quite clearly that there is no law that Parliament cannot legally pass:

    Parliament has, under the English constitution, the right to make any law whatever, and further, no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament

    (Introduction to the Study of the Law of Constitution)

    EG’s says that a parliament can “do pretty much what it likes within the law”. (That is a good thing?) But according to Mr Gray, parliament defines and write the law, hence it can do what it likes “within the law”. Sounds like a circular, question-begging argument to me.

    Far from it.

    As long as a law is in force, Parliament must obey it and if it does not the courts can find against it. However, nothing prevents Parliament repealing that law or modifying it such that it would no longer be in breach.

    the original reason for my complaint about EG’s defence of unlimited parliamentary sovereignty, which is that he acknowedges no constraint on such power. None whatsoever apart from being able vote occasionally

    Exactly. But since by virtue of its supremacy Parliament cannot be bound by its predecessor, “voting occasionally” and electing a new Parliament can reverse any act of the prior Parliament. This is, strictly, the only limitation on Parliamentary power, although there are practical limitations.

    EG

  • Johnathan

    Euan, if the only constraint on parliament is what a previous parliament has decided, and which can be overturned, that is not much of a constraint in my eyes. It sounds pretty much a sort of “make it up as you go along” sort of argument.

    This debate certainly makes me warm to the U.S. constitutional model.

    There has been, over the past century or so, a serious assault on all manner of institutions, the Common Law, a whole patchwork of rules and constraints. I guess you are comfortable with all of that? The answer is obviously yes, which is why the charge of complacency against you sticks, IMHO.

  • John K

    There is actually nothing in US law to prevent the government there doing exactly the same thing. Whatever may be thought, the right to keep arms under the second amendment is contingent and collective, not absolute and individual, and furthermore this is the way the American courts have consistently interpreted the amendment. This is why the pro-gun lobby rarely attempts to challenge the constitutional propriety of gun control law in the courts – it is simply not unconstitutional.

    You may not be aware, but the Office of Legal Counsel of the Department of Justice issued a finding for the Attorney General on 17th December 2004 on this issue. The conclusion was:

    “The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.”

    It also stated:

    “The Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units.”

    And:

    “Individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights.”

    The full text is at http://www.usdoj.gov/olc/secondamendment2.html

  • Euan Gray

    Johnathan,

    No, the only real constraint on Parliamentary power is not what a previous Parliament has done but rather that whatever it does can be undone by a later Parliament. Maybe it does sound like “make it up as you go along,” but that’s how it has worked for over 300 years. This system works for a regulated state as we have now, or an unregulated one as we had 150 years ago. Say what you like about a pragmatic approach, it does tend to work.

    I understand the sympathy with the US model, but it has to be said that the US constitution simply does not prevent the same sort of things happening as have happened here. In the US, the constitution is supreme, but it can be amended – look at prohibition for a practical example of the US state being able to impose unwaranted bans on things. Whether these intrusions work is another matter, but the fact remains that there is little to prevent them being enacted.

    The problem is not the form of government, but the prevailing culture.

    Economic regulation is a no-brainer, since an absence of regulation is not needed to provide a comfortable and growing standard of living. The western world is EXTREMELY unlikely ever to revert to laissez-faire – not because it doesn’t work, but because it is simply unnecessary and the social results are deeply unpopular.

    Some degree of social regulation is necessary, since it is necessary to cede a degree of personal sovereignty in order to gain the benefits of society. Pace Perry, any society actually is something greater than the sum of its parts, and the benefits of belong thereto are so persuasive to almost all people that they are willing to forego some personal freedom in order to gain them. I don’t mean cash benefits, but other things such as a more efficient and effective system of security and defence of rights and liberties (through the good old capitalist notion of the division of labour).

    I am quite comfortable with all of that, both personally and philosophically.

    What I am NOT comfortable with is the erosion of fundamental principles of equitable social organisation such as restricting habeas corpus, the presumption of innocence, the right to silence, the right to due process of law, and so on. This IMO constitutes an unnecessary and potentially counterproductive cession of autonomy. I have no philosophical problem with some rights being suspended TEMPORARILY in time of grave emergency, but I don’t agree that (a) such suspension should be permanent, (b) that this idea applies to any and all rights, or (c) that we actually face such a grave emergency.

    The charge of complacency does not stick at all. If you have followed what I have written in other threads here, you will see that I have consistently and emphatically opposed the unnecessary erosion of these rights, the laughable idea that we are at war & that this justifies it, the idea that it is ok to lock people up without trial, that it isn’t necessary to allow people to see the evidence against them, or that these things are somehow acceptable to apply against foreigners but not against us.

    Furthermore, I object most strongly to the crass assumption that the US system is superior despite the ample evidence that the US is at least as ready as England to trample on the rights of people, especially foreigners. In no sense whatever does the US system provide any stronger guarantee against such egregious infringements of basic principles of justice and the rule of law. Note that I am not denigrating the US system, I am simply saying that in this respect it is no better than ours.

    EG

  • Euan Gray

    You may not be aware, but the Office of Legal Counsel of the Department of Justice issued a finding for the Attorney General on 17th December 2004 on this issue.

    I wasn’t aware, thank you for pointing it out.

    This is a very recent change to the consistent ruling of the courts. It is also simply an opinion with no legal authority, and I suppose it would need to be tested in court before the matter could be decided.

    However, it is entirely possible to read other scholarly analyses of the matter which reach the opposite conclusion. Since these analyses are consistent with the rulings of the courts over the past 140 years, and since the individualist view is a very recent phenomenon, I don’t think it can be said with any confidence that the DoJ opinion is definitive and final.

    Having said that, there is no reason in law why the practical interpretation of the amendment cannot in future be in favour of an individual right – things change. This would, however, require overturning pretty much all of the legal rulings on the matter. This can be done, but I would be confident that it will be done.

    EG

  • Euan Gray

    Of course, I meant “would NOT be confident that it will be done.”

    EG

  • Johnathan Pearce

    Euan, you write that the fundamental problem lies in the culture. You are absolutely correct about that and I happily accept what you say about the monstrosity of the assaults on habeas corpus, etc. But doesn’t that rather suggest there is a fundamental problem with the way in which politics and our constitution operates? It suggests, surely, something is seriously amiss.

    So the question I would put to you a person who has said that rights can be taken away by the sovereign parliament, is can we rely on this parliament to defend our liberties any longer as it is presently consituted? I doubt it. What the alternatives are, of course, is up for debate. I’d make a start by introducing a democratically elected House of Lords, elected probably on a different basis to the Commons. Just a start, maybe, but a start even so.

    I haven’t the space to argue the finer points of what you say about regulation. It is not the case that classical liberals are against regulations per se. (Think of the rules laid down by all manner of institutions like stock exchanges, insurance companies, banks, voluntary associations, for example, or Army regiments, or Churches, or whatnot). What liberals are against are the sort of regulations laid down by politicians aimed at helping or harming particular groups, such as maternity leave rules, or compulsory hiring policies, or 35-hour weeks as in France, minimum wage laws, etc.

    In any case, it is pretty hard to argue that many regulations have any kind of beneficial social or economic outcome. Many are intended to benefit certain vested interests, not necessarily the consumer. Many are also the outcome of political horse-trading, not high idealism.

    It may be true that a reversion to total laissez faire capitalism is not going to happen. I am not so naive to imagine it will come about during my lifetime. However, I would claim it is an entirely plausible goal for scribblers like Perry, yours truly or others to try to change the climate of opinion at the margins. That is all we can do, and frankly, I’d rather focus on that than pin my hopes solely on the political circus.

    That’s enough from me. I’m going to re-read the article Perry linked to.

    Sorry if I got a bit heated in my language higher up. You are a bit pompous, old chap.

  • John k

    This is a very recent change to the consistent ruling of the courts. It is also simply an opinion with no legal authority, and I suppose it would need to be tested in court before the matter could be decided.

    I think you will find that this opinion will be of value when courts have to judge 2nd Amendment cases. It is 109 pages long, and considers the 2nd Amendment from its British beginnings in the Bill of Rights, through to the language used in the 2nd Amendment and the other Amendments, to the rulings of the courts on this.

    I am not sure where you get this information that the courts have consistently agreed that the 2nd Amendment confers a collective right. Some lower courts have, but others emphatically have not. Are you aware of any Supreme Court ruling on this question? I don’t think there has been one. In recent decades the SC has preferred not to consider 2nd Amendment cases.

    I know that in the Miller case the SC had to decide if a sawn off shotgun was suitable as a militia weapon, and they decided it was not. This was in the context of the 1934 National Firearms Act. I think it’s fairly obvious that the SC was wrong, and that short barrelled shotguns are quite suitable for militia use, but that’s by the by. Miller’s case was not helped by the fact that he was a bootlegger, who I think got rubbed out by his business associates before the end of the trial.

  • Euan Gray

    But doesn’t that rather suggest there is a fundamental problem with the way in which politics and our constitution operates?

    I don’t think so. As I said above, it works for both regulated and unregulated states, and has lasted well enough for over 300 years – there’s something good about it if it can manage to do all that. I think there is danger in fundamentally changing the system becuase it goes to far in one direction, when it is patent from the historical record that it has swung just as far in the opposite direction. Constitutional systems have to be flexible, and anything which would destroy this flexibility is questionable, to say the least.

    can we rely on this parliament to defend our liberties any longer as it is presently consituted?

    Not at present, and not as currently emasculated by the elected house. Parliamentary reform is a major issue, I agree – but I don’t think there’s anything wrong with the idea of supremacy. Something has to be supreme, and IMO it may as well be something the people can directly control.

    I’d make a start by introducing a democratically elected House of Lords, elected probably on a different basis to the Commons

    I have a lot of sympathy for this idea, but also a few concerns.

    We have seen what abuse the over-mighty elected house has wrought. If we had an elected upper house, might it not suffer from the same disease of pandering to the base desires of the masses? Perhaps something like an appointed upper house, 50% appointed by the government and 50% by the opposition?

    I think that term limits for elected representatives at all levels should be imposed. I also support compulsory voting. Some decry this as a pointless exercise, creating only a victimless crime. For a start, it is not a criminal but a civil matter, and I see no real problem with something like a £25 fine for not voting. If you don’t pay the fine, it’s deducted from your salary or dole. Several countries have compulsory voting (notably Australia and, IIRC Italy) without causing the sky to fall in. If this is objected to, it is perhaps legitimate to ask what alternative there should be to encourage people to take part in the process. Simply saying we should abandon democracy because who needs government anyway is no answer – that isn’t going to happen.

    What liberals are against are the sort of regulations laid down by politicians aimed at helping or harming particular groups

    I don’t like most of them either. As I said, some degree of regulation is inescapably necessary, but we have gone too far. Probably where we differ is on precisely the degree of regulation needed, not the principle.

    It may be true that a reversion to total laissez faire capitalism is not going to happen

    It’s a racing certainty it’s not going to happen. There is simply no need for it. Perhaps one of the questions that should be asked more of laissez-faire advocates is a simple “why?”

    I would claim it is an entirely plausible goal for scribblers like Perry, yours truly or others to try to change the climate of opinion at the margins

    Laissez-faire, minarchism and anarcho-capitalism are fringe policies. They are not taken seriously in the political system either here or in the US, and almost certainly never will be not least because acceptably functional and proven alternatives exist. I think coming at the debate from those angles simply guarantees that one will not be taken seriously, however sensible the actual policy one advocates. You might change opinion at the margins, but you won’t affect the mainstream, which is where things that actually matter happen.

    Sorry if I got a bit heated in my language higher up

    It’s a debate. One is allowed to get a little heated :)

    You are a bit pompous, old chap

    A failing I cheerfully admit, along with pedantry, didacticism and an inability to be sucked in by ideology. However, I think it beats the paranoia, exaggeration, misdirection, hysteria and sometimes downright mendacity not exactly uncommon in liberal/libertarian circles. No defence, of course.

    EG

  • Euan Gray

    I know that in the Miller case the SC had to decide if a sawn off shotgun was suitable as a militia weapon, and they decided it was not.

    As the courts have pointed out, ANY weapon has a military (or militia) value. Subsequent decisions by lower courts have made it quite plain that the nature of the firearm in Miller’s case was not the issue.

    Are you aware of any Supreme Court ruling on this question? I don’t think there has been one

    I listed four earlier. To recapitulate:

    US vs Cruikshank in 1876;
    Presser vs Illinois in 1886;
    Miller vs Texas in 1894;
    US vs Miller in 1939

    These cases are not specific test cases brought to directly determine the constitutionality or otherwise of the amendment, but the supposed individual right has been a factor in them and the court’s judgement thereof has been pretty clear.

    In recent decades the SC has preferred not to consider 2nd Amendment cases

    This would appear to be true, and may simply be for the reason that the SC considers the matter closed. However, no changes in US constitutional law have altered the validity of prior SC rulings on the matter.

    EG

  • John K

    These cases are not specific test cases brought to directly determine the constitutionality or otherwise of the amendment, but the supposed individual right has been a factor in them and the court’s judgement thereof has been pretty clear.

    I think you have answered my question there. The SC has never, it would appear, made a final ruling on whether the 2nd Amendment is a collective or individual right. I think this may well be because they would like it to be collective, but know it is not. This Dept of Justice opinion will therefore be very influential, because it will be referred to in cases both in lower courts, and maybe the SC, and it will be a big hurdle for the collectivists to get over.

  • Euan Gray

    The SC has never, it would appear, made a final ruling on whether the 2nd Amendment is a collective or individual right

    You haven’t read any one of these four judgements, have you?

    EG

  • Euan Gray

    This Dept of Justice opinion will therefore be very influential

    I don’t know. Essentially it reflects recent opinion in several law journal articles, and weasels its way around the consistent interpretation of the amendment so far made.

    I don’t think this is a sound basis for legal policy. There was a recent example in the presidential line-item veto. This idea came to the fore largely because of articles in law journals. Bush the First accepted the principle of the doctrine, before later repudiating it in 1992. Clinton signed law to make it permissible in 1996, but the Supreme Court struck it down as unconstitutional in 1998. Bush the Second apparently wants the idea revived.

    Just because a legal opinion says something is in accordance with the constitution does not make it so. The Supreme Court has this final decision. So far, the Supreme Court has been consistent in its interpretation of the Second Amendment right. This can of course change, but essentially unless the Supreme Court definitively reverses itself it is unlikely that anyone asserting this as an individual right is going to get anywhere.

    it will be a big hurdle for the collectivists to get over

    Since the right is considered in law at this time to be a collective right, it is the individualists who need to jump the hurdles. This memorandum is clearly part of an attempt to do so.

    EG

  • Euan’s notion that society is more than the sum of its parts is not just wrong, it is the root of much tyranny as it automatically ranks the collective above the individual. Yet in reality it is the societies that use force to ‘protect’ society from individual aberations (be it rock music or long hair or business inovation) that demonstrate so well how society is never more than exactly the sum of its parts as protecting some imaginary emergent greater character of society actually just reduces the whole.

  • Euan Gray

    Euan’s notion that society is more than the sum of its parts is not just wrong

    What is a corporation if it is not a society? It is a group of people voluntarily banding together to achieve collectively what they cannot achieve individually. This IS what society consists of, and it IS greater than the sum of its parts.

    If it was not, why would people accept the costs of sacrificing some of their individualism when there was nothing to gain? People voluntarily and freely form societies, at expense to their individualism, to gain rewards they could not otherwise gain. In fact, you can’t stop them doing this, since it appears to be an innate part of humanity – which of course one might expect from a social animal like Man. Everywhere in the world people form societies, whether it be tribe, clan, village or nation. If these societies conferred no advantage – i.e. if they were no more than the sum of their parts – there would be no point in doing this, it would be wholly counterproductive to accept the burden of doing so, and mankind would be no more than a collection of individuals each facing the world alone because this would be the most effective manner of doing so. Why do you think this doesn’t happen?

    it is the root of much tyranny as it automatically ranks the collective above the individual

    To the extent that you cede your individualism to the collective, yes. That’s the whole point. The tyranny part comes in if nobody bothers doing anything about those who seek power for its own sake or who expressly wish to control others. Price of freedom being eternal vigilance, and whatnot.

    Of course there is coercion – you cannot be a part of a society unless you follow the rules, and those rules must be enforced. Not just in civil society, but also in every social endeavour from the fishing club to the corporation. Do you seriously argue that corporations do not coerce their employees to obey the rules? I’m quite sure you don’t.

    If you don’t like the rules, you can set up your own fishing club or go to work for another company. In the same way, if you don’t like the rules of civil society, you are perfectly free to choose another. What you cannot do, however, is demand that society changes its rules just because you don’t like them – especially, I must say, if you refuse to make any use of the mechanism put in place to enable you to express your contrary opinion. You cannot have it both ways – gaining the benefits of society without having to pay the admission fee in ceding part of your individualism.

    Life just doesn’t work like that – anywhere – and it’s rather pointless to insist that it should.

    EG

  • John K

    Since the right is considered in law at this time to be a collective right, it is the individualists who need to jump the hurdles. This memorandum is clearly part of an attempt to do so.

    No, I admit I have not read those 4 SC cases, but if it is as cut and dried as you are saying, I wonder why we are having this conversation? If the case is closed, it is closed, and I am sure the gun banners would make a meal of it.

    The wording of the Constitution and Bill of Rights is I think quite consistent. References to “rights” and “the People” concern individuals, whereas government has “powers” or “authority”.

    A collectivist 2nd Amendment would have read something like:

    “A well regulated militia, being necessary to the security of a free state, the authority of the state to raise such a militia shall not be infringed.”

    I find it a bizarre concept that every right mentioned in the Bill of Rights should apply to individuals, except the right to keep and bear arms, which is apparently concerned with the state being allowed to form a militia. I wonder why this would have been put in the Bill of Rights at number two?

  • Johnathan

    I cannot resist another rejoinder to Euan’s suggestion that libertarians like us are wasting our time by arguing for a principled philosophical vision of small government.

    “you won’t affect the mainstream”, writes EG. Well, only by having arguments about issues do we know what the “mainstream” is. As Keynes remarked many years ago, much conventional wisdom is derived from what a long-dead economist or philosopher, (some fringe nutter, no doubt) said decades earlier.

    Do not underestimate the importance of boldly stated ideas. They have an effect.

  • Euan Gray

    No, I admit I have not read those 4 SC cases, but if it is as cut and dried as you are saying, I wonder why we are having this conversation?

    Quite possibly because you haven’t read the judgements.

    The wording of the Constitution and Bill of Rights is I think quite consistent. References to “rights” and “the People” concern individuals, whereas government has “powers” or “authority”.

    Rights of the people are not necessarily individual rights. For example, the right to freely assemble is by definition a collective right.

    The SC has interpreted the Second Amendment right as a right belonging to the people in a collective sense, and not as an absolute individual right to keep and bear arms. They have also said that the right is clearly and inextricably linked to the matter of state security, expressed in the 18th century as the necessity of raising a militia.

    EG

  • What is a corporation if it is not a society? It is a group of people voluntarily banding together to achieve collectively what they cannot achieve individually. This IS what society consists of, and it IS greater than the sum of its parts.

    Collectivist tosh. That is NOT what a society is. I have not ‘banded together’ with British society and have no desire to ‘achieve’ anything with it. What you claim is like saying a fish ‘bands together’ with the sea in order to achieve swimming.

    I band together with the people I choose to work with and ‘unband’ with them when it no longer suits me. A corporation is not a society because it is a volitional organization with a specific purpose, whereas society is just a bunch of people sharing some cultural traits in some geographic area that has no purpose at all, just some recognisable characteristics (like standing on the left on escalators or wearing lederhosen).

  • What is a corporation if it is not a society? It is a group of people voluntarily banding together to achieve collectively what they cannot achieve individually. This IS what society consists of, and it IS greater than the sum of its parts.

    But that is NOT what a society is. I have not ‘banded together’ with British society to achieve anything. It is like saying a fish ‘bands together’ with the sea in order to achieve swimming. I band together with the people I work with and ‘unband’ with them when it no longer suits me. A corporation is not a society because it is a volitional organization with a specific purpose, whereas society is just a bunch of people sharing some cultural traits that has no ‘purpose’ at all, just some recognisable characteristics (like standing on the left on escalators or wearing lederhosen).

    With regard to the second amendment, the Also, the 17th December 2004 finding was hardly a surprise. If it is not an individual right then are you seriously suggesting the intention of this Amendment was to specify that the STATE has the right to have armed people (i.e. an army or police)? i.e. “A well regulated militia, being necessary to the security of a free state, the right of the people STATE to keep and bear arms, shall not be infringed” would have the same meaning and was actually what they meant to say? That the state shall not infringe its own right to have armed people?

  • Euan Gray

    I band together with the people I choose to work with

    And why would you bother doing that? Could it, possibly, be something to do with the fact that you can achieve more collectively than you could on your own? And could one not say the same thing of everyone you band together with for your work?

    And is it not, therefore, inescapably and obviously the case that your collective effort is greater and more rewarding than the sum of your individual efforts would have been? And thus, equally obviously, that the society of your corporation is something greater than the sum of its parts?

    In order to achieve this, you must obviously give up some of your personal interest and desire to the greater good of the collective body that is your company – at least, for as long as you wish to. Thus, you pay a price for getting the benefit of that collective endeavour.

    A corporation is not a society because it is a volitional organization

    Of course, you chose to do the work you do whereas you didn’t choose to be a member of British society. This means nothing, because you equally didn’t choose not to be something else, nor did you choose something else only to be denied. You didn’t choose to be born when and where you were born.

    There is no possibility of choice in these matters whatsoever, so to decry its absence is ridiculous. We all have to start somewhere and we don’t get a choice in the matter. Britain puts no obstacle in your way if you wish to leave (as you plan to), so you do have the choice of maintaining or abandoning your membership of this society.

    There is a healthy competitive market of countries which would, I am sure, gladly welcome your business ability. You also have the option to band together with others of a like mind and found your own society. You DO NOT have the choice to demand that Britain (or any other society) revolve around you and change to suit your desires. This is one of the rules, but you are not compelled to remain in that society.

    If it is not an individual right then are you seriously suggesting the intention of this Amendment was to specify that the STATE has the right to have armed people (i.e. an army or police)?

    Again, you need to consider these things in the context of their time. The maintenance of large standing armies was, as has been explained before, a matter of no little contention in the 18th century. One of the concepts alive at the time was that a militia of armed citizens would make a better and more appropriate system of defence for the new republic. Thus, in order to ensure such a militia would be available to defend the several and the united States, the amendment. America’s military record in the early years soon proved that the idea of the citizen militia as a serious armed force was, although fine and noble in theory, a disaster in practice, and soon enough the standing army took its place. There is perhaps a lesson here for those who would privatise the military, but I doubt it would be learned.

    Mainstream opinion has not considered the right under the amendment to be an individual right until very recently – the rise in individualist articles in the law journals does not happen until the 1980s. Even so, it is still articles in journals, not formal legal rulings. Before then, opinion was overwhelmingly that it was a collective right and furthermore contingent on the concept of the militia, and indeed the Supreme and federal courts have consistently so ruled. No gun control law ever been struck down as unconstitutional, and this is basically why.

    If you’d care to review the judgements in the four Supreme Court cases listed, or to peruse the numerous subsequent federal court rulings, the reasoning of the various justices and the clear interpretation of the contingent collective nature of the amendment will be entirely obvious.

    Essentially, the interpretation is that because a militia was seen as necessary, the States were not permitted to prevent the people (in a general sense) owning weapons. Interestingly, this amendment has not, so far as I am aware, been incorporated under the fourteenth amendment, although some journal articles and indeed the memorandum of opinion cited do try to say that some degree of protection is afforded by the 14th, at least by implication.

    Now, this means that a general blanket ban on guns of all types would be unconstitutional. However, a ban on specific types of guns (e.g. handguns, machine guns, assault weapons, etc) would not be unconstitutional. Also, the right of the state to suppress rebellion and maintain order (also listed in the constitution) may take precedence over other rights of the people – free speech in America is constrained in that it is illegal to advocate the violent overthrow of the state, for example. As a general principle, if it was shown that the maintenance of order and security was best served by a ban on handguns (for example), there would be (a) no constitutional bar to this happening and (b) an express constitutional right of the state to impose such a ban in such circumstances.

  • Euan Gray

    I cannot resist another rejoinder to Euan’s suggestion that libertarians like us are wasting our time by arguing for a principled philosophical vision of small government

    I think you are, for a couple of reasons:

    1. Laissez-faire has been tried before. It was found to produce undesirable results for the majority of people and prone to turn recession into depression, although it was undoubtedly efficient at making money;

    2. Minimalistic government has also been tried before. It does tend to result in the exploitation of the weak by the strong, which most people (other than the strong, presumably) find objectionable;

    3. The economy works well enough for all practical purposes with a degree of regulation to prevent the bad side-effects – there is no reason why laissez-faire is necessary for anything;

    4. State regulation is, when kept to a moderate level, reasonable at minimising the exploitation of the weak by the strong;

    5. A reversion to laissez-faire and minarchy, let alone anarchy, is simply not going to happen in a democracy with universal franchise;

    6. Asking for these things weakens the much more realistic case that regulation should be reduced rather than abolished, since the strong case is easily tarred with the same brush as the weak case (imagine arguing for a mixed economy from a communist viewpoint, same principle);

    7. Nobody cares whether it is philosophically principled, internally coherent or logically watertight (using its own brand of logic, of course) since it IN PRACTICE has side-effects that outweigh any theoretical advantages it may have.

    EG

  • John K

    If you’d care to review the judgements in the four Supreme Court cases listed, or to peruse the numerous subsequent federal court rulings, the reasoning of the various justices and the clear interpretation of the contingent collective nature of the amendment will be entirely obvious.

    I’ve had a look at these 4 cases, and I am not sure they really answer this question, which is why it is still a live one.

    These cases hinged on questions such as did the 14th Amendment apply to the 2nd Amendment, and could the 2nd Amendment be used to protect the right to have armed parades, carry concealed firearms, or carry a sawn off shotgun.

    I agree that the SC has put the context of the 2nd Amendment, rightly, in terms of having arms available for militia use. The 2nd Amendment does not relate to hunting or sport shooting, or even to private self-defence. However, it is equally clear that the idea of the militia is that it is a body to which one brings one’s own guns, and therefore if one is not allowed to own a gun, one is not much use to the milita.

    I think the term “collectivist” has been hijacked by gun banners to imply the 2nd Amendment relates to a body such as the National Guard, in effect an army reserve, funded and armed by the state. I think it would be fairly easy to prove that that was not what the framers of the USC had in mind at all, and indeed the National Guard system was not even set up until 1905.

    So you are perhaps right to say that the purpose of the 2nd Amendment is to protect the right of the people to act collectively as a militia so as to maintain the security of a free state. But it follows therefrom that they must be allowed to own arms in their personal capacity to enable them to do this, otherwise the militia would be unarmed, and the 2nd Amendment would make no sense at all.

  • Johnathan

    “minimalistic government has been tried before and tends to result in the exploitation of the weak by the strong”, argues Gray. If you use exploitation in the Marxian sense, then you are talking palpable rubbish, given the terrific increase in living standards that coincided with the 19th Century industrial revolution, and demonstrated more recently by the tremendous growth in places like Hong Kong. Many of the problems associated with the present Welfare State and burdensome employment laws in continental Europe are also not a great advert for Big Govt.

    You seem quite happy, as is obvious, with a system in which at least 40 percent of one’s wealth if taxed at source, and the rest of our economic activity weighed by a host of regulations. It may be true that “the mainstream”, to use your question-begging term, is content with this state of affairs. I expect it is because we have had Big Govt. for so long in the West that after a while people cannot imagine anything else. Simple inertia, rather than contentment, explains a lot of it.

    There is no argument that EG uses today that he could not have used to defend the mess of the 1970s until that ideologue with her crazy friends, Maggie Thatcher, came along. EG is just a blinkered defender of the status quo, and his occasional remarks about removing the odd regulation here and there do not suggest otherwise.

  • Euan Gray

    I’ve had a look at these 4 cases, and I am not sure they really answer this question, which is why it is still a live one

    To be honest, it’s only a live issue for the individualist pro-gun lobby. Everyone else seems to consider it long since settled.

    As for the National Guard, this is in some sense analogous to the militia, but not directly. The word “militia” in contemporary American usage seems to relate more to independent armed groups, some of a rather odd political bent, which was nothing like the original idea of a militia. I think the sensible way to view it is that the right is inextricably connected to the idea of state security, and thus is not an absolute individual right. If it were otherwise, one assumes the DC ban on guns would be judged unconstitutional – but it never has been.

    But it follows therefrom that they must be allowed to own arms in their personal capacity to enable them to do this, otherwise the militia would be unarmed, and the 2nd Amendment would make no sense at all.

    Indeed, but you must understand that times have changed and state security in the US no longer depends on a militia (and hasn’t for a long time). Indeed, in that sense, there is no militia any more. There is no constitutional bar to gun control, and any given class of firearms can quite legally be banned.

    the terrific increase in living standards that coincided with the 19th Century industrial revolution, and demonstrated more recently by the tremendous growth in places like Hong Kong

    Yes, Hong Kong – which operated a modest welfare system and where all land is owned by the state (you only lease it from the government, you don’t own it). Hong Kong also did not have to pay for its own defence and since it was not democratic did not need to bother about the wishes of the people to any great extent. Hong Kong was lightly regulated, but still regulated. It is and was in no sense a minarchist or laissez-faire paradise.

    As for 19th century England and America, there is no doubt that exploitation of the weak by the strong existed. This is inevitable unless there is compulsion to the contrary, or at least we might say that it has hitherto always happened in the absence of such compulsion and there is no reason to suppose it wouldn’t happen in the future since it is a basic part of human nature. It is true that living standards increased significantly – it is also true that the disparity between the richest and the poorest increased markedly. This is the thing that is generally felt objectionable, and thus unlikely to be tolerated again in a democratic state. There is no perceived necessity for such high rates of growth in either the US or UK, so it is unlikely the price would be felt worthwhile.

    You might also like to consider that other economically highly successful states such as Singapore and now China are pretty heavily regulated in the social sphere, and relatively lightly regulated economically.

    I don’t disagree with the idea of reducing the burden of regulation. Pace your assessment, I do not think it necessary or desirable for the state to control 40% of the wealth of the nation – equally, though, I don’t think it necessary or desirable to reduce this much below about 25%. I don’t defend the status quo, but I do accept that the concept of a moderately regulating state is pretty much necessary. It can be scaled down, but it cannot realistically be abolished.

    EG

  • To be honest, it’s only a live issue for the individualist pro-gun lobby. Everyone else seems to consider it long since settled.

    There is no constitutional bar to gun control, and any given class of firearms can quite legally be banned.

    Sorry but if you think that then truly truly truly you have no idea what you are talking about. The notion that this is not a huge issue but is just an obsession of minority individualists like the Samizdatistas indicates you really do not understand US politics at all. The issue is FAR from settled and the claim that there is no constitutional bar to gun control in the US and and any given class of firearms can quite legally be banned is preposterous.

    …and as a practicle matter, I would say Hong Kong actually meets 90%+ of the criteria for being a minarchist state even if not a really ‘libertarian’ one.

  • Euan Gray

    The issue is FAR from settled and the claim that there is no constitutional bar to gun control in the US and and any given class of firearms can quite legally be banned is preposterous

    I see you haven’t read the Supreme Court rulings either. In the US the Supreme Court is the final arbiter of what the constitution says, as you know perfectly well. Since the Supreme Court has no fewer than four times interpreted in the opposite way than you, one must either conclude that (a) you know more about the constitutional law of the US than does the Supreme Court, or alternatively (b) you are wrong.

    How, for example, do you explain the DC ban in relation to your notion that gun control is unconstitutional? This has been challenged on constitutional grounds, and has been upheld as being perfectly constitutional.

    EG

  • John K

    Since the Supreme Court has no fewer than four times interpreted in the opposite way than you

    I do not agree with you. In the 4 cases you cite, the SC was not looking primarily at this question.

    What it seems to be saying, is that the constitutional right to keep and bear arms is there to enable participation in a militia. Therefore, it is not available as a defence to a citizen to say that he has a right to carry a concealed handgun because of the 2nd Amendment. Nor is it a defence to say that one has a right to go hunting because of the 2nd Amendment. The 2nd Amendment secures an individual right to keep and bear arms with a view to collective participation in a militia.

    How, for example, do you explain the DC ban in relation to your notion that gun control is unconstitutional?

    I am not aware that the SC has considered the DC ban. However, the DC ban is not a ban on all guns. Handguns are banned, but long guns are allowed under restrictions quite similar to those we have in the UK, eg owners need a permit, guns are registered, they have to be kept under lock and key when not in use.

    Thus, it might be argued that law abiding Washingtonians may own rifles and shotguns, and therefore if necessary could participate in a militia. I would argue that an outright ban on the possession of all guns would be unconstitutional.

    This is of course not to argue that the DC gun laws make any sense at all.

    I would also argue that the Clinton “assault weapon ban” probably was unconsitutional, since it purported to ban the type of semi-auto rifle which is certainly suitable for militia use. Again, I do not think the SC would consider an appeal against that Act, which at any rate is now void. The SC’s reluctance may have been because they knew the Act was unconstitutional, but preferred not to deal with it. Speculation on my part, I agree.

    To be honest, it’s only a live issue for the individualist pro-gun lobby. Everyone else seems to consider it long since settled.

    That will be why the Department of Justice has just released a 109 page finding on this very point? This is a definitive statement of the position of the US government on this question, and it will be used by all courts as a vital point of reference. You may dismiss that, but the courts will not be able to ignore this finding.

    Indeed, but you must understand that times have changed and state security in the US no longer depends on a militia (and hasn’t for a long time). Indeed, in that sense, there is no militia any more.

    Well the gun banners are free to propose a constitutional amendment any time they like, I doubt they would get very far.

  • Johnathan

    Of course, JLM’s original article in the Social Affairs Unit blog makes the point that liberty rests on a number of foundations, of which parliamentary democracy is just one element, and not a particularly reliable one (Weimar Germany, Zimbabwe, post-Shah Iran, to name a few). A strong culture of liberty, belief in indiividual rights, respect for procedural safeguards like juries, habeas corpus, independent courts, vigorous independent institutions, a free press, widely dispersed private property, respect for science and learning, separation of religion from the state,….etc…..Think of it as a sort of holistic thing.

    As the general election gets under way and we look at the likes of Blair, Howard and the rest, it pays to keep that in mind.

  • Euan Gray

    In the 4 cases you cite, the SC was not looking primarily at this question.

    But nevertheless it addressed it and answered it, and the answers have been used by the federal courts ever since in their judgements. Or does it only count if a specific test case is brought?

    However, the DC ban is not a ban on all guns. Handguns are banned, but long guns are allowed under restrictions quite similar to those we have in the UK

    Exactly. I said that the constitutional right nevertheless enables specific types of weapon to be banned (pace Perry), which is what the DC ban does.

    This is of course not to argue that the DC gun laws make any sense at all

    As I understand it, the ban was introduced in an attempt to cut the very high homicide rate. I confess I have not looked at the results, but from what I gather it has pretty much had the desired effect.

    I would argue that an outright ban on the possession of all guns would be unconstitutional.

    So would I, and I have said so above. My point is not that guns can be lawfully banned in toto (I don’t think they could) but rather that whole classes of guns can be banned in certain circumstances in pursuance of other rights (not least the rights of the state) under the constitution – and the DC ban shows that this can indeed be done.

    I would also argue that the Clinton “assault weapon ban” probably was unconsitutional, since it purported to ban the type of semi-auto rifle which is certainly suitable for militia use

    The type of weapon is immaterial, since the right nowhere says “the right of the people to keep and bear arms suitable for militia purposes.” As pointed out earlier, and as noted by the courts, almost any weapon has a potential military use. To say the assault weapon ban was unconstitutional, one would also have to accept that the DC ban is unconstitutional since they are effectively the same thing – banning a specific type of weapon. Since the DC ban has been challenged but never found to be unconstitutional, it seems this argument is without merit.

    The SC’s reluctance may have been because they knew the Act was unconstitutional, but preferred not to deal with it

    Sounds like a paranoid conspiracy theory to me.

    This is a definitive statement of the position of the US government on this question, and it will be used by all courts as a vital point of reference

    But it is not a definitive statement of the law. That is for the courts to determine, not the executive government – separation of powers and all that. It may well be that the courts will make use of it, but a memorandum of opinion is not legal doctrine and nor is it binding on any court.

    Well the gun banners are free to propose a constitutional amendment any time they like

    Why would they do this? There is no need. No gun control law has yet been struck down as unconstitutional, and unless and until the SC reverses itself the second amendment right is legally seen as contingent and collective rather than absolute and individual. Like it or not, the individualists are the ones who would need to seek a change in or reinterpretation of the law.

    As it stands at the moment, there is no legal impediment to the state banning handguns (as in DC), assault weapons (recently lapsed ban), or any other type of firearm they see fit. I do agree with you, as I have said quite plainly above, that a blanket ban of all guns of any type would almost certainly be unconstitutional.

    EG

  • Euan Gray

    Think of it as a sort of holistic thing

    Yes, I agree. It gets back to my earlier point that the form of government is not the problem, it is rather the prevailing culture – our culture of demanding instant material gratification and asserting rights at the same time as denying obligations.

    EG

  • But nevertheless it addressed it and answered it, and the answers have been used by the federal courts ever since in their judgements.

    Tosh and it has already explained why it is tosh so I do not propose to reiterate it.

    Exactly. I said that the constitutional right nevertheless enables specific types of weapon to be banned (pace Perry), which is what the DC ban does.

    Nice evasive manoeuvre! Let me quote what you wrote earlier with some emphasis added…

    There is no constitutional bar to gun control, and any given class of firearms can quite legally be banned.

    And id ANY given class can be banned, that is tantamount to saying all classes of firearms can be banned. And if you think that is what the Supremes said, maybe YOU need to actually read those cases. I would just love to hear what Eugene Volokh makes of that assertion.

  • Euan Gray

    Nice evasive manoeuvre!

    Nice try, but you’re wrong.

    And id ANY given class can be banned, that is tantamount to saying all classes of firearms can be banned

    That any given class can be banned lawfully does not at all imply that all classes may be banned lawfully. This should be obvious. If your logic holds, then if we say “people who are convicted of crime can lawfully be jailed” we are saying that “all people can lawfully be jailed.”

    I have said before, and I really cannot find simpler words for it, that a ban on ALL firearms is almost certainly unconstitutional, but a ban on a specific type of firearm is not. That this is the case is clearly seen (a) from the court judgements, (b) from the DC handgun ban, and (c) from the assault weapons ban.

    EG

  • Euan Gray

    Tosh and it has already explained why it is tosh so I do not propose to reiterate it

    Actually, it hasn’t already been explained. The judgements in assorted federal cases completely back up the SC position, and I would love to see anything which contradicts this. This is fact, easily demonstrated by reviewing the federal judgments in question:

    From Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Circuit 1982):

    “Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment.”

    From Cody v. U.S., 460 F.2d 34 (8th Circuit 1971):

    “Since United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), it has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms. The Second Amendment’s guarantee extends only to use or possession which ‘has some reasonable relationship to the preservation or efficiency of a well regulated militia.’”

    From Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Circuit 1999):

    “The link that the amendment draws between the ability ‘to keep and bear Arms’ and ‘[a] well regulated Militia’ suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia….”

    There are many more which take exactly the same positions. I think it reasonable to conclude that the federal courts in backing up the consistent SC interpretation of the amendment probably have a better understanding of the law than either you or I, and I am content to yield to their wisdom.

    So no, it is not tosh.

    EG

  • John K

    As I understand it, the ban was introduced in an attempt to cut the very high homicide rate. I confess I have not looked at the results, but from what I gather it has pretty much had the desired effect.

    DC now has a low murder rate does it? You are joking right?

    The type of weapon is immaterial, since the right nowhere says “the right of the people to keep and bear arms suitable for militia purposes.”

    They probably didn’t think they needed to write it, since it is bleeding obvious.

    Since the DC ban has been challenged but never found to be unconstitutional, it seems this argument is without merit.

    It has not been to the SC as far as I know.

    Sounds like a paranoid conspiracy theory to me.

    Ad hominem, not impressed.

    Like it or not, the individualists are the ones who would need to seek a change in or reinterpretation of the law.

    A law which recognises the right of individuals to keep and bear arms so as to be of use to the militia? The 2nd Amendment is a right of individual people. It is not a right granted to the state to raise and arm a militia.

    In US v Miller, the finding was that a sawn off shotgun was not suitable for militia use. I happen to think that decision was wrong, but since Miller was not represented in court, due to his having been whacked by rival bootleggers, it is not that surprising he lost. I doubt he cared by that stage. The point is, that by saying a sawn off shotgun is not suitable as a militia weapon, the SC is clearly implying that others are. This case concerned the National Firearms Act 1934. The Clinton Assault Weapon Ban of 1994 never got to the SC, and they choose which cases they will review. I would be impressed by anyone who could argue with a straight face that a self-loading rifle with a box magazine was not the archetype of a modern militia weapon.

    It is perfectly possible to think of weapons that are not suitable for milita use, let’s say low powered air guns, or single shot UIT style .22 target rifles. Modern full bore rifles are most certainly potential milita weapons, and it would take legal sophistry of the highest order for the SC to be able to rule that a ban on them would be constitutional. But of course, if they won’t hear the case, they won’t have to.

    You’ll notice that I’ve refrained fom accusing you of a mental illness, and if you could do the same it would only be common politeness.

  • sark

    That any given class can be banned lawfully does not at all imply that all classes may be banned lawfully.

    Jesus, how dumb is that? That is EXACTLY what the word ANY means. Ok, here are some classes of weapons:

    Handguns, bolt action rifles, pump action rifles, semi-auto rifles, full auto rifles, sub-machineguns, machineguns…

    Now please tell us which of these CANNOT be legally banned because of your wacko reading of the Second Amendment.

  • Euan Gray

    That is EXACTLY what the word ANY means

    To quote from the American Heritage Dictionary, 4th Ed.:

    adj. One, some, every, or all without specification

    pron. (used with a sing. or pl. verb) Any one or more persons, things, or quantities.

    Note the “without specification.”

    “Any” does not necessarily mean “all.” It can imply all, in the sense that “any gun” can mean “all guns without exception,” but this cannot be inferred as a necessity from the use of the word. The same phrase can mean “one gun.” This is where the lack of specification comes in.

    It should have been perfectly clear from the language I used that I explicitly disallowed the case “all,” since I did quite clearly say that I thought a blanket ban on all guns would be unconstitutional. My meaning should have been abundantly clear as being “any gun, or any class of gun, short of all firearms of all types.” Is this so hard to understand?

    I must say it has come to something when one has to explain the meaning of monosyllabic words.

    EG

  • Euan Gray

    DC now has a low murder rate does it? You are joking right?

    I did say I had not examined the matter, didn’t I? I have read that the handgun ban was immediately followed by a drop in the murder rate of some 25%, but I really have no data to back that up. Given that this was in 1976, I have also no idea how things have changed in the intervening years. However, I will try to find the relevant statistics and look into the matter- if you already know of them, please post a link.

    They probably didn’t think they needed to write it, since it is bleeding obvious.

    I suggest you might find it profitable to consider the situation at the time, and the debates as to the alternative ideas for the amendment (and even whether there should actually be such an amendment).

    Ad hominem

    No, it’s not. You suggested that the SC knew the law was unconstitutional but even so refused to consider the matter. Since one of the primary functions of the SC is in fact the determination of the constitutionality or otherwise of law, it suggests that for some unknown reason the court conspired not to consider a matter it had a duty to consider. Hence, conspiracy theory.

    The 2nd Amendment is a right of individual people

    Not according to the Supreme Court and the federal courts. No disrespect intended, but I suggest the courts are perhaps better qualified to decide the matter then you, than Perry or than me. I have only stated what they have clearly said for themselves.

    I would be impressed by anyone who could argue with a straight face that a self-loading rifle with a box magazine was not the archetype of a modern militia weapon

    As has been pointed out before, the type of weapon is immaterial. Of course assault weapons are suitable for militias, but this just is not the point. A machine gun is, if anything, even more suited to militia use yet machine guns are tightly controlled in the US. The amendment has nothing to do with any specific type of weapon, and whether the weapon in the case being examined is or is not suitable for militia use is ABSOLUTELY IRRELEVANT.

    To cite yet another case, U.S. v. Hale, 978 F.2d 1016 (1992):

    “After carefully examining the principles and implications of the then recent Miller decision, the First Circuit concluded that the existence of any ‘reasonable relationship to the preservation of a well regulated militia’ was best determined from the facts of each individual case. Thus, it is not sufficient to prove that the weapon in question was susceptible to military use. Indeed, as recognized in Cases, most any lethal weapon has a potential military use”

    The type of weapon in question, or the type banned, is not relevant to the rights under the amendment.

    EG

  • John k

    You suggested that the SC knew the law was unconstitutional but even so refused to consider the matter

    I also said that was speculation on my part.

    The 2nd Amendment is a right of individual people
    Not according to the Supreme Court and the federal courts.

    If the right to keep and bear arms cannot be exercised by individuals, it makes no sense it all.

    “After carefully examining the principles and implications of the then recent Miller decision, the First Circuit concluded that the existence of any ‘reasonable relationship to the preservation of a well regulated militia’ was best determined from the facts of each individual case. Thus, it is not sufficient to prove that the weapon in question was susceptible to military use. Indeed, as recognized in Cases, most any lethal weapon has a potential military use”

    Where is the problem? If it was illegal to walk down the street with a gun, the fact that you walked down the street with a militia weapon would not be protected by the 2nd Amendment. US v Miller did concern the question of whether a sawn off shotgun was a militia weapon, the SC decide it was not.

  • Euan Gray

    I also said that was speculation on my part

    I must admit I missed that part of your statement. If you’ll accept it wasn’t meant ad hominem, I withdraw my comment.

    If the right to keep and bear arms cannot be exercised by individuals, it makes no sense it all.

    The courts have been quite clear and consistent that the right is a collective right contingent on the concept of the militia. Obviously, an individual citizen is the person carrying the weapon, but the right is not granted to him as an individual citizen per se.

    Some rights are collective, others are individual. For example, consider the right of free assembly. Clearly, this is a collective right since it hard to have an assembly of one person. However, the assembly is made up of individuals, and it is only by individuals performing the act that the collective right makes sense. Similarly for the right to keep and bear arms – it is a collective right, but it only makes sense when individuals perform it.

    The important point is that there is no constitutional right granted direct to the individual to keep and bear arms. This should be abundantly clear from the judgements cited. The American Bar Association makes a similar clear statement here. An extract is given below:

    The United States Supreme Court and lower federal courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual’s right to keep or carry firearms. The argument that the Second Amendment prohibits all State or Federal regulation of citizen’s ownership of firearms has no validity whatsoever

    Where is the problem?

    The problem lies in your argument that the assault weapons ban would be unconstitutional insofar as it prohibited weapons which were suitable for militia use. My point is that this is not an issue since the type of weapon subject to any ban is completely irrelevant, as the courts have (several times) made clear.

    EG

  • John K

    The problem lies in your argument that the assault weapons ban would be unconstitutional insofar as it prohibited weapons which were suitable for militia use

    I was making that comment because the SC in Miller concerned itself with the question of whether Miller’s sawn off shotgun was a militia weapon. The implication was that some weapons are suitable for militia use, and also that if the sawn off had been suitable, the 1934 Act might have fallen.

    If you accept that the 2nd Amendment relates to the rights of citizens to be armed so as to be able to form a well regulated militia, it follows logically that they cannot be forbidden from possessing arms suitable for their use as members of a militia. To me that seems straightforward. If these rights “shall not be infringed”, how could you argue a case for the prohibition of the very weapons which the militia needs to be effective?

    I understand from the cases you cited that the 2nd Amendment does not protect a right to parade with arms, to carry a concealed pistol, or to carry a sawn off shotgun. But if it does not protect a right to own the very weapons which will arm the militia, which it has just stated is necessary to the security of a free state, then what does it protect? I assume the framers of the Bill of Rights thought the 2nd Amendment was meant to mean something? Paper was expensive in those days, I doubt they were wasting it.

  • Euan Gray

    John,

    It seems clear enough that the amendment is intended to prevent Congress interfering with the States’ right and duty to raise a militia, and that in so doing it grants a collective (not individual) right to the people to keep and bear arms contingent on the concept of the militia. This is how the courts have consistently ruled. There are a couple of points relevant to this:

    1. Defence of the several or the united states no longer depends on a citizen militia – this policy was abandoned a very long time ago after it was found to be a disaster in practice. Defence is now organised centrally by the federal government with state participation in the form of the National Guard. The NG is not a militia, but it is the closest extant analogue to the militia in the sense of the second amendment.

    2. Since the provision of arms for the defence, including the National Guard, is made centrally and does not depend on the use of privately held arms, it is impossible to conceive of a restriction on the private possession of arms which would, in practice, interfere with the organisation or regulation of the “militia,” or in practical terms the military defence of the several or the united states. There is therefore no logical reason to suppose that the constitution prohibits gun control of pretty much any kind, and so the courts have held.

    3. Arguments about the unconstitutionality of banning weapons suitable for militia use get nowhere (as has been demonstrated more than once in court). There is no militia in the constitutional sense, therefore the private possession of weapons suitable for militia use is irrelevant and unprotected since there is no mechanism for their regulated use therein.

    4. Arguments about the militia in general don’t get anywhere either. There is no such thing any longer, and so little point in debating what does or does not prevent it forming.

    5. For as long as the defence of the US and the states themselves depends on centrally organised and armed military forces, and for as long as there is no formal, regulated, state-controlled militia dependent on the use of privately held firearms, the constitution of the United States offers no protection to the right of the individual citizen to own firearms. The only reason the right is protected (and even then it is not an individual right) is in connection with such a militia – if the militia doesn’t exist, the right offers no protection to the individual, and so the courts have also held (repeatedly).

    Whatever the rights and wrongs of gun control, it is specious to argue that the constitution protects the right of individuals to own, keep, use or bear firearms of any kind. It just doesn’t, plain and simple, and the courts have consistently said so.

    EG

  • I must say it has come to something when one has to explain the meaning of monosyllabic words

    White man speak with forked tongue

    You did not actually answer Sark’s point. Which of those types of firearm could NOT be banned then? Or does your rather special understanding of American law suggest they can all be banned, just not in one go? Sorry but you have a very poor understanding of the reality of this subject and that you do so at such great length is interesting.

  • expat yank

    There is no militia in the constitutional sense

    Wrong, Euan. I guess you are not familiar with our concept of what a ‘constitutional militia’ actually is(Link). The unorganized militia is very real and are the able bodied men NOT in the regular military. It is a very real notion.

  • Euan Gray

    Which of those types of firearm could NOT be banned then?

    None of them. This should again have been perfectly obvious. It’s probable that one could argue a total ban on all weapons would be unconstitutional, but in the strict interpretation of the amendment made by the courts this may not be NECESSARILY true. Certainly, there is nothing constitutionally special about any given type of weapon that means it cannot be banned.

    your rather special understanding of American law

    It is not my “special” understanding of the law, it is the interpretation of the constitutional law of the US made by the Supreme Court of the US and upheld by US federal courts consistently and unanimously. No offence, Perry, but I think they know a bit more about American law and legal doctrine than you do.

    I know that many libertarians seem to have a blind spot when it comes to gun control, but the plain fact is that your view of the law is quite different than that of the courts charged with judging it. In such circumstances, one has to give greater weight to the opinion of the court than to your opinion.

    I think you’d have to produce citations of supreme or federal court rulings which contradict the court views expressed above to have any credence. Until then, sorry, but you’re plain wrong.

    Sorry but you have a very poor understanding of the reality of this subject and that you do so at such great length is interesting

    Again no offence, but you really should read the court judgments cited. The effect of the law is that given by the interpretation of the courts and thus far, their interpretation has been perfectly clear and consistent. What part of that gives you difficulty?

    EG

  • Euan Gray

    Wrong, Euan. I guess you are not familiar with our concept of what a ‘constitutional militia’

    Not so, I’m afraid.

    The sense of the term “militia” in the 18th century is a body comprised of citizens and armed by the weapons the citizens themselves owned, which is distinct from a more formal army which is centrally controlled and armed. To that extent, Title 10 militia seems to qualify.

    However, the militia in the sense you cite is basically every man of military age. This is not “a well-regulated militia” in the constitutional sense and is not organised. It does not, therefore, qualify.

    Wishful thinking notwithstanding, there is no regulated militia in the sense that the second amendment governs. This has also been addressed and disposed of by the courts – unorganised militias don’t come under the protection of the amendment. I’ve cited enough judgements already, but I can easily cite more to support this view. Again, it is not my opinion, it is the judgement of the courts.

    EG

  • expat yank

    Wrong again. The unorganized militia is exactly what is being refered to in the second amendment and the notion is most certainly constitutional. You dont get to pick and choose which type militia you get to cite. Other wise what the hell do you think “the right of the people” bit actually means? Where else does “the people” means “the state”? “Well regulated” does not mean “organized”, it means it is reasonable to pass laws that prohibit people who make up that militia getting drunk and then walking down the street firing their guns in the air. THAT is what well regulated means. Try taking a few civics classes at any American high school.

  • Euan Gray

    You dont get to pick and choose which type militia you get to cite

    Dearie me.

    Yes you DO, because the amendment clearly mentions a “well regulated Militia.” This does not mean an unorganised militia. You might contrast the “well regulated” formal militia with the unorganised groups controlled, for example, by people like Capt. Shays in Massachusetts. Shays, in case you are unaware, was a major reason for the strengthening of formal state military powers during the Philadelphia Convention.

    Since you seem to have difficulty grapsing the distinction, here is an excerpt from a court judgement – US vs Oakes, 564 F.2d 384 (10th Circuit in 1977):

    “The purpose of the second amendment as stated by the Supreme Court in United States v. Miller, supra at 178, 59 S.Ct. 816, was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. To apply the amendment so as to guarantee appellant’s right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant’s membership in ‘Posse Comitatus,’ an apparently nongovernmental organization”

    There is a clear an unambiguous difference between a state militia as intended in the 18th century and an unorganised informal militia as seen today.

    To assert that “well regulated” means simply that the militia has rules is to perform a set of linguistic and philosophical gymnastics that perverts the meaning beyond any possible reasonable interpretation of the intent. This is essentially what the court has said. The modern militia is NOT seen in law as being equivalent to the state militias of the 18th century, so you DO get to pick and choose because there IS a meaningful difference.

    Other wise what the hell do you think “the right of the people” bit actually means?

    In some cases it means an individual personal right. In other cases it means a collective general right of the people in the sense of “the body of the people.” See above re the right to free assembly which says “the people” but which is hardly an individual right.

    Try taking a few civics classes at any American high school

    Perhaps you could try to consider that the circumstances of the late 18th century were vastly different from those of the early 21st, and furthermore that the use of language has changed in some respects. Perhaps you might also consider READING THE JUDGEMENTS of the supreme and federal courts in the cases cited. The opinion of the courts is quite clear and consistent – I am not making any of this stuff up, nor is it just my opinion, it is rather the clear pronouncment of the courts of the United States.

    People have advanced in court the arguments that you are making, so you are not alone. However, their arguments have always been rejected by the court.

    EG

  • expat yank

    You act as if it is a settled matter and yet any reading of US politics demonstrates that just aint so. Well regulated does not mean organized. You kight want it to mean that but it doesnt. So sure, it is allowed to make rules governing the use of arms and even the type of arms, but the core right of INDIVIDUALS to own arms remains and if you think that aint so, even though there are been HUGE effort to ban all weapons, then you really need to understand the reality of the US before sounding off.

  • Euan Gray

    You act as if it is a settled matter

    According to the courts, it is.

    any reading of US politics

    Politics is not law. I do understand perfectly well that there are political moves to change things, but the legal position right now is clear, unambiguous, simple to understand and settled. This can be changed, but for this to happen the Supreme Court will need to reverse itself. It can of course do this, but there is no sign of it happening any time soon.

    the core right of INDIVIDUALS to own arms remains

    Would you care to explain the legal basis for this contention, given that the courts have repeatedly ruled that there is no such individual right under the current constitutional settlement?

    EG

  • John K

    Would you care to explain the legal basis for this contention, given that the courts have repeatedly ruled that there is no such individual right under the current constitutional settlement?

    Euan,

    I have read the 4 cases you have cited, and I cannot accept the conclusion you are putting forward. You are treating as a settled fact something which is actually a live question.

    You further seem to be saying that the 2nd Amendment, as it is currently understood by most Americans, is a dead letter, completely meaningless. Again, I do not agree.

    Why not have a look at the finding written for the Attorney General at the DoJ website(Link) and tell us what you think?

    I agree that this finding is not an SC judgment, but it will guide courts when they are in future dealing with 2nd Amendement cases.

    I am sure that you will argue that there are two sides to any argument. Fine. But I think you are completely overstating your case when you claim that it is completely cut and dried.

    Your argument seems to be that Americans only have the right to keep and bear arms if they are serving in a well regulated militia. Since the nearest thing they have now to a well regulated militia is the National Guard, they only have the right to keep and bear arms if they are in the National Guard.

    I profoundly reject this interpretation. It would make the 2nd Amendment one of the oddest and most useless items ever added to any Constitution. Name me any country in the world which does not allow men serving in its uniformed armed forces not to carry arms?

    Anyway, rather than bandy words, have a look at the DoJ finding and tell us what you think.

  • John K

    Name me any country in the world which does not allow men serving in its uniformed armed forces not to carry arms?

    Full marks if you spotted the double negative!

  • Euan Gray

    You are treating as a settled fact something which is actually a live question

    All I can do is (again) cite judgement:

    “Since United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), it has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms.”

    This is from the judgement previously cited above, Cody v. U.S., 460 F.2d 34 (8th Circuit 1971). I treat it as settled because that is the opinion of the courts.

    Why not have a look at the finding written for the Attorney General at the DoJ

    I already have, and have posted my thoughts on it above. However, to recapitulate:

    Memoranda of opinion are NOT legally binding and are NOT formal statements of the law. In the US there is a clear separation of powers, and the memo comes from the executive. The constitutionality and interpretation of law is decided by the judiciary. Whilst it is perfectly possible that the courts may refer to this memo, they do not have to accept it. Unless, of course, you suggest separation of powers is a bad thing and the executive should tell the judiciary how to rule? Then, of course, you might get an anti-gun executive, which could legally ban every weapon… You see the point?

    As I also mentioned before, one can just as easily find scholarly articles and opinions which reach precisely the opposite conclusion. The arbiter is the court. If the court says “individual,” then it is individual. If it says “collective,” then it is collective. Whatever it says, has to be accepted unless or until successfully challenged. So far the supreme and federal courts have consistently and unanimously said “collective.” If you think this is untrue, please cite legal judgement from the supreme or federal courts in support.

    But I think you are completely overstating your case when you claim that it is completely cut and dried

    In law at present, it IS completely cut and dried. In politics, it is not, but that political desire for change has not yet been translated into a change in law.

    Your argument seems to be that Americans only have the right to keep and bear arms if they are serving in a well regulated militia

    No, my argument is that nothing in the US constitution grants an absolute or individual right of the citizen to own weapons, irrespective of status. I hold this opinion partly from the pretty obvious wording of the amendment, but mainly because it is blindingly obvious that it is the opinion of the recognised experts & lawful final arbiters on the matter – I bow to their wisdom.

    It would make the 2nd Amendment one of the oddest and most useless items ever added to any Constitution

    It can be argued that the provisions of the amendment are indeed no longer relevant in today’s society which is markedly different than agrarian 18th century America. It was a vitally important matter 230 years ago, but is arguably not so important now.

    Name me any country in the world which does not allow men serving in its uniformed armed forces not [sic] to carry arms?

    OK, I’m allowing for the double negative.

    In Britain, a serving soldier is only entitled to carry arms when required to do so in the performance of his military duty. At all other times he is subject to the ordinary civil legal code, as is anyone else. An officer might carry a handgun when on active service, for example, but this bears no relation whatever to his ability to privately own or carry a handgun. Indeed, attempting to get around the gun ban by asserting one’s position as a member of the armed forces is illegal.

    In the US, serving military personnel not in the actual performance of military duty must also obey the civilian law on firearms and have no ex officio right to own or arms where the private citizen does not also enjoy the right.

    This is because of that pesky “rule of law” concept, where the same rules apply to all people. Having a uniform does not make one immune to civilian law.

    EG

  • John K

    OK, we’ll have to agree to differ on this one. I have read the cases you cited, and find it nowhere near as cut and dried as you make out. I do happen to think that if the DoJ produces a finding as well written and complete as this one the courts will take notice of it. I’m sure that if the DoJ had come down on the collectivist side the gun banners would be making hay about it.

    BTW, I believe the weight of scholarly research in recent years has favoured the individual view. Looking at the language of the 2A and its historical context, that’s hardly surprising. You will be aware that Bellesiles’ work has been comprehensively trashed?

    And as I said, every government in the world empowers its uniformed servicemen to carry arms. I did not mention anything about being off duty. That’s the point about the National Guard, they are issued with their weapons, and can only carry them on duty. I don’t think you really need a constitutional amendment to establish that fact!

    Then, of course, you might get an anti-gun executive, which could legally ban every weapon… You see the point?

    I though that was your point, namely that the American people do not have the right to keep and bear arms. If it is not constitutionally protected, presumeably an anti-gun executive could do just that?

  • Euan Gray

    I do happen to think that if the DoJ produces a finding as well written and complete as this one the courts will take notice of it

    No doubt, but they would also probably take note of the equally well written and complete analyses by other jurists which reach quite the opposite conclusion.

    I believe the weight of scholarly research in recent years has favoured the individual view

    For about the past 20 years, yes. For all of the preceding period, the balance was decisively the other way.

    Looking at the language of the 2A and its historical context, that’s hardly surprising

    I would have to say, taking account of language and history, that the collective case is to me far more convincing. Thus far it has been rather more convincing to the courts, too.

    If the framers had meant to grant an individual right, why did not they simply say “The right of the people to keep and bear arms shall not be infringed?” Why did they explicitly tie it to the militia question? This is what makes it plain that it seems to be a collective right, since they have gone to a lot of unnecessary trouble to obfuscate the matter if their intention was individual.

    You will be aware that Bellesiles’ work has been comprehensively trashed?

    Of course. As has the work of Lott on the opposite side.

    I did not mention anything about being off duty

    Then I completely fail to see any point you were trying to make with your comment.

    I though that was your point

    Plainly you didn’t see the point, then.

    I wanted to emphasise that, irrespective of modish political thought, it is the judiciary that decides whether the right is collective or individual. The executive should not have undue influence over this decision, because then you simply have arbitrary government.

    Since you consider that the Supreme Court has not held that the right is collective (although I don’t see why the plain written word is unpersuasive), I trust that you would respect their opinion if they did so?

    EG

  • John K

    Then I completely fail to see any point you were trying to make with your comment.

    Because you are saying that in effect all the 2A now protects is the right of National Guardsmen to carry weapons, which to me seems like a waste of a constitutional amendment. Every government allows its armies to carry arms, they would not be much use otherwise. The National Guard is like any army unit, they are issued weapons when on duty, and hand them in when off duty.

    Anyway, perhaps the SC will come to a decison on this one day. They do not seem to be keen to hear cases concerning the 2A. I will point out that there is growing dissatisfaction with judicial activism in the US, so if the SC wanted to go against the DoJ position they would have to be very sure of their ground.

  • Euan Gray

    Because you are saying that in effect all the 2A now protects is the right of National Guardsmen to carry weapons

    No, I’m saying it DOESN’T protect any right of the individual to keep and bear arms outside of a militia context (not at all the same thing), and that it DOES prevent any measure being enacted which might prejudice the maintenance of a “well regulated militia.” In the modern context, since the militia (or NG as the modern equivalent of the state militia) no longer depends on, and in fact does not use, privately held arms, there is no credible reason whatever that any restriction on privately held arms could possibly prejudice the maintenance of any state militia or NG. Thus, the courts have ruled consistently that gun control law is not unconstitutional.

    I agree it is ludicrous to require an amendment to say the militia can have guns, and I’m not saying the amendment is framed in that manner.

    They do not seem to be keen to hear cases concerning the 2A

    Possibly because the law of the matter is settled. I think there is confusion here – the LAW is undoubtedly settled quite clearly and unambiguously, but the POLITICS of the matter is not. Law and politics are not the same things. That there is political debate on the issue is fact, but that does NOT mean there is legal debate. Legally, the matter is settled unless or until the Supreme Court reverses itself. It may be a politically controversial issue, but it is not at this time legally controversial, whatever the individualist lobby – and more especially the pro-gun lobby – may think or may like others to think.

    if the SC wanted to go against the DoJ position they would have to be very sure of their ground

    I think it is reasonable to say that they are indeed sure of their ground, since there is unanimity in the SC and federal court rulings on the matter and has been for at least the past 65 years. Does this long term consistent unanimity not suggest to you that they ARE quite sure? Again, the question of law and politics comes up – the memo is a political document from the executive, the interpretation of the constitution is a legal matter determined by the courts.

    EG

  • expat yank

    No, you are indeed saying the amendment says “the militia”, by which YOU mean the army or NG, can have guns (and you just pretend the unorganized militia means nothing constitutionally regardless of US Title 30). Yet that aint what it says.

    That you say the law is settled “clearly and unambiguously” and yet STILL pro-gun ban politicals cannot for some reason ban guns in even the most blue of blue states indicates your disconnect from US reality. None, not one, of the cases you cite actually prevented the DOJ position being taken that it IS an individual right and it is kind of a safe bet they read them too. Just as free assembly is an individual right: the group cannot be dispersed unless it is riotous because the INDIVIDUALS that make up the group have a right of assembly and free association. That you cannot understand that says to me you cannot possibly be an American!

  • Euan Gray

    No, you are indeed saying the amendment says “the militia”, by which YOU mean the army or NG, can have guns

    No, I’m not. Read my comments again if you don’t agree.

    and you just pretend the unorganized militia means nothing constitutionally regardless of US Title 30

    I say the unorganised militia means nothing constitutionally for the simple reason that the courts say the same thing – it means nothing. Read the judgement cited if you don’t agree.

    That you say the law is settled “clearly and unambiguously” and yet STILL pro-gun ban politicals cannot for some reason ban guns in even the most blue of blue states indicates your disconnect from US reality

    The law IS settled, whatever you may think. No gun control legislation has ever been struck down as unconstitutional. Whether people are POLITICALLY able to ban guns is one thing, but they are certainly able to do it LEGALLY. If you don’t agree, perhaps you could explain the existence of the DC handgun ban or the recently lapsed assault weapons ban, neither of which were ever successfully challenged as being unconstitutional.

    None, not one, of the cases you cite actually prevented the DOJ position being taken that it IS an individual right

    This means nothing. The DoJ position has no legal force, and the department can say whatever it wants. That doesn’t in itself change the law – the judiciary does that, not the executive. The DoJ memo is a legal OPINION, not a statement of law. It has no more and no less force than a learned article arguing precisely the opposite position. Unless, of course, you assert that the executive should dictate to the judiciary how to interpret the constitution – but to do that you’d have to deny the separation of powers.

    Just as free assembly is an individual right

    Unless you assert the possibility of an assembly of one, the right of free assembly is by definition a collective right exercised by individuals. Some rights are individual, some are collective. Again, read some judgements if you don’t agree.

    EG

  • John K

    No, my argument is that nothing in the US constitution grants an absolute or individual right of the citizen to own weapons, irrespective of status. I hold this opinion partly from the pretty obvious wording of the amendment, but mainly because it is blindingly obvious that it is the opinion of the recognised experts & lawful final arbiters on the matter – I bow to their wisdom.

    Before you had mentioned that it would be constitutional to ban certain classes of firearms, but not all.

    But if Americans have no individual right to own firearms, then why would it be unconstitutional?

  • Euan Gray

    But if Americans have no individual right to own firearms, then why would it be unconstitutional?

    Because it would completely deny any possibility whatsoever of the collective right of the people to bear arms in defence of the state.

    EG

  • John K

    Because it would completely deny any possibility whatsoever of the collective right of the people to bear arms in defence of the state.

    But if the militia is now a dead letter, then why would the people need to be able to keep and bear arms?

    The people can always bear arms in defence of the state if they are issued with the arms by the state, as happens with the National Guard.

    Since the provision of arms for the defence, including the National Guard, is made centrally and does not depend on the use of privately held arms, it is impossible to conceive of a restriction on the private possession of arms which would, in practice, interfere with the organisation or regulation of the “militia,” or in practical terms the military defence of the several or the united states. There is therefore no logical reason to suppose that the constitution prohibits gun control of pretty much any kind, and so the courts have held.

    Do you still hold to this view?

  • Euan Gray

    It’s not the practicality of it, but the constitutional logic that would make a total ban probably unconstitutional.

    In practice, it would make not the slightest difference to the matter of state security. In practice there is no need for the people to be any longer granted the right to keep and bear for the purposes of defence, since national defence just doesn’t work that way any more.

    In theory, however, a total ban would necessarily mean there was no possibility of a militia of the constitutional type being raised, even if in reality such a thing no longer exists and is no longer the basis of state defence – but who is to say that it would never be needed in future? Of course the people could still bear arms in the state organs of defence, but the constitutional militia depends on privately held arms, not centrally controlled weapons. A total ban precludes the possibility of a state militia in the constitutional sense, and since the second amendment forbids any law which which would preclude the possiblity of the militia, a total ban would be, logically, unconstitutional. The question here is not whether the state-regulated citizen militia exists (it doesn’t), or whether a better alternative exists (it does), but whether or not the state miltia could theoretically exist. I suppose I didn’t word it terribly well before, but this is the reason why I have said that pretty much any conceivable gun law other than a total and outright ban of everything would be hard to defeat on strictly constitutional grounds. On strictly practical grounds, a total ban would make absolutely no difference, however.

    Then again, this is a highly implausible scenario. I don’t think there is any realistic probability of any US government any time soon trying a wholesale ban of all guns. Whatever the technicalities of constitutional law, guns are for better or worse too deeply ingrained in American culture to completely eradicate. In terms of practical politics, however, I don’t think that any gun control measure of the type likely to be proposed by any plausible US government could really be judged unconstitutional.

    EG

  • John K

    but the constitutional militia depends on privately held arms

    I’m confused now, because you said above that even in the 18th Century the 2A should have been seen in a collectivist light.

    If you accept the collectivist view, there was nothing stopping the state in the 18th Century from supplying arms to its militiamen. Therefore, if you are correct, even in the C18 the 2A was not guaranteeing an individual right.

    Are you saying that in the C18 the right to keep and bear arms existed for individuals or not? If it did exist, when do you think it ceased to exist?

    it is specious to argue that the constitution protects the right of individuals to own, keep, use or bear firearms of any kind. It just doesn’t, plain and simple, and the courts have consistently said so.

    If you still stand by that comment, then surely there would be no constitutional bar to a complete ban on the private possession of arms by individuals. And how does that comment square with your comment above that the constitutional milita depends on privately held arms? I can’t follow your line of reasoning.

    In practice there is no need for the people to be any longer granted the right to keep and bear for the purposes of defence, since national defence just doesn’t work that way any more.

    If I could quote from the SC in Miller:

    “The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress”

    Was the SC wrong when it said that?

  • Euan Gray

    I’m confused now

    OK, I’ll try to explain it again in summary:

    RKBA is granted under the amendment to the body of the people in pursuit of the need to prevent any interference in the right and duty of the State to raise a well-regulated militia.

    Although it is plain that the wording of the amendment is not a model of clarity, it is much harder to put an individualist construction on the words than a collective one, due to the clause “A well regulated militia…” If the intent was individualist, then the framers went to extraordinary lengths to conceal the fact. Why would they do this?

    There was indeed nothing stopping the state arming the militia. However, you need to consider this question in the context of the time. A citizen militia, armed by means of weapons the citizens owned, was seen as a preferable method of securing the defence of the several and united States in the late 18th century, due to the contentious nature of the whole question of a standing army. This is a matter that has fundamentally changed in the intervening period, and modern assumptions simply don’t apply to 250 year old concerns. You need to have some understanding of history, as well as simply reading what the law says.

    The militia in the constitutional sense is clearly a State body (consider also events like Shays’ rebellion to understand why unorganised militias were most certainly not the intent), armed by means of weapons the people themselves owned. It therefore makes sense that law to disarm the people would be prejudicial to the assumptions surrounding the defence of the state, and thus a constitutional prohibition of such law would be required, which is what the second amendment does.

    The RKBA in the context of the constitutional militia does not grant an individual right to private citizens to own weapons EXCEPT in connection to the militia question, as is abundantly obvious from the first clause in the amendment. The type of weapon in question is irrelevant, in part because the amendment says nothing in this respect, and in part because militias 250 years ago would have fielded a wide variety of weapons. Ammunition compatibility is not such an issue with antique weapons as with modern.

    Because there is no individual right, there is no reason why certain classes of people may not be prohibited from owning weapons. Because there is no wording on types of weapon, there is no reason why specific types of weapon cannot be prohibited.

    However, because a total ban on all arms would completely preclude the possibility of a citizen-armed militia, such a ban would be contrary to the logic of the constitution. Therefore, it seems reasonable to infer that any group of people can be disbarred from owning weapons, that any class of weapon can be banned, and that a total ban of all weapons for all people would be unconstitutional.

    Was the SC wrong when it said that?

    I personally don’t agree with any concept of pre-existent rights derived from the simple fact of humanity, other than the right not to be deprived unreasonably of life. However, in the case of the US one can argue that, being previously a British territory, the British idea in the Bill of Rights of 1689 that people should be allowed to keep arms would be inherited and thus could be considered to exist before the amendment.

    I think, although I am not certain, that British precedent from before the revolution can inform the US courts, and therefore this idea might have merit.

    EG

  • John K

    it is specious to argue that the constitution protects the right of individuals to own, keep, use or bear firearms of any kind. It just doesn’t, plain and simple, and the courts have consistently said so.

    Do you stand by this comment? In your opinion, does the 2A not protect in any way the right of individual people to keep and bear arms?

    RKBA is granted under the amendment to the body of the people

    As I have quoted from the SC in my previous post re Miller, the Bill of Rights grants nothing, it recognises pre-existing rights. The American constitutional theory was that government does not grant rights to its subjects as a king might, rather that the people, as the sovereign body, grant powers to government. Any powers not granted to government by the people, the government does not have.

    Can you explain how a right can exist for the “body of the people” without also existing for individual people?

    The militia in the constitutional sense is clearly a State body …armed by means of weapons the people themselves owned

    Are you therefore conceding that the intention of the framers of the USC was that individual people had the right to keep and bear arms? If so, when, in your opinion, did that right cease to be operative?

  • Euan Gray

    Do you stand by this comment?

    Yes.

    In your opinion, does the 2A not protect in any way the right of individual people to keep and bear arms?

    IMO, it protects the right only insofar as the exercise of that right has “some reasonable connection” to the issue of the militia, to quote Miller.

    The American constitutional theory was that government does not grant rights to its subjects as a king might, rather that the people, as the sovereign body, grant powers to government

    In which case one would assume that there would be no need to mention RKBA (or indeed any other right of the people) since, if it had not been explicitly ceded to the state, the assumption would logically have to be that the “sovereign people” had retained this right. So why mention it at all?

    This sort of “natural rights” stuff is all very well, but unfortunately the world does not actually work like that. You can’t get a dozen people together and achieve unanimity on what “natural rights” actually are. My opinion, for what little it is worth, is that there is no such thing as natural right, nor is there sich a thing as natural law.

    Can you explain how a right can exist for the “body of the people” without also existing for individual people?

    Yes, it’s not a difficult concept.

    Consider an example perhaps easier to understand – the right to free assembly. This is obviously a collective right of the body of the people, since an assembly of one is not meaningful. However, since people are at the same time individuals and part of the body of the people, this collective right can only be exercised by individuals – although in exercising the right, the individuals are acting collectively. Similarly, it has hitherto been interpreted, with the second amendment: individuals acting collectively within the context of the militia are protected, but in any other context are not. There is no individual right per se in these examples.

    Are you therefore conceding that the intention of the framers of the USC was that individual people had the right to keep and bear arms?

    Not outside of the militia context, at least in law. What they considered the pragmatic actual rights of the people to be is another matter.

    If so, when, in your opinion, did that right cease to be operative?

    It’s not quite the same question, but I think RKBA in the militia sense ceased to be relevant when the privately armed state militia ceased to be relevant.

    EG

  • John K

    In which case one would assume that there would be no need to mention RKBA (or indeed any other right of the people) since, if it had not been explicitly ceded to the state, the assumption would logically have to be that the “sovereign people” had retained this right. So why mention it at all?

    This was discussed at the time. Some did not want a Bill of Rights because they did not think it was needed, but the final view was that would be a useful safeguard.

    Not outside of the militia context, at least in law. What they considered the pragmatic actual rights of the people to be is another matter.

    You therefore reject the reading of the 2A, to the effect that the reference to the milita is prefatory, and that the main clause of the sentence is “the right of the people to keep and bear arms shall not be infringed.”?

    It’s not quite the same question, but I think RKBA in the militia sense ceased to be relevant when the privately armed state militia ceased to be relevant.

    Well since you only recognise RKBA in the milita sense, you are saying that this amendment is dead?

    Therefore, it seems reasonable to infer that any group of people can be disbarred from owning weapons, that any class of weapon can be banned, and that a total ban of all weapons for all people would be unconstitutional.

    So Congress could pass a law saying that black people were not allowed to keep and bear arms?

    What is your opinion of the opening paragraph of the DoJ memo:

    “Recent interpretations of the Second Amendment have been characterized by disagreement and uncertainty. The Supreme Court has not decided the question that we address here, and at least three views prevail in the Federal courts of appeal.”

    Do you know something the Department of Justice does not?

  • John K

    “Recent interpretations of the Second Amendment have been characterized by disagreement and uncertainty. The Supreme Court has not decided the question that we address here, and at least three views prevail in the Federal courts of appeal.”

    Do you know something the Department of Justice does not?

    I’ll take it that you don’t.

    You have completely mis-stated the positions of the courts on this point.

    It is true that the SC in Miller looked at the militia question, but they were primarily concerned with whether a sawn off shotgun was a militia weapon.

    Since then, some lower Federal courts, especially those with a liberal bias such as the 9th Circuit, have adopted a collective view. Other Federal courts have adopted an individual view, one example being Judge Sam Cummings in the 5th Circuit.

    The point is, whatever your view of the 2nd Amendment (and I happen to think your view makes no logical sense), the issue of whether the 2nd Amendment is an individual, collective or quasi-collective right is still open. In this context, the well argued and referenced DoJ finding will, I predict, be a very important document in any case before the SC.

  • Euan Gray

    I’ll take it that you don’t.

    You should not assume that because someone does not reply for a few days this means he has given up.

    The DoJ opinion, for the umpteenth and last time, is OPINION. It is NOT a statement of the law. One can ready numerous well researched and scholarly papers from other jurists which reach the opposite conclusion. They cannot both be right, and the fact that one of them is the DoJ does not mean that party is right.

    You have completely mis-stated the positions of the courts on this point

    No, I have not. I suggest you actually read some judgements on the matter. You will find that the overwhelming consensus of the courts is pretty emphatically on the collective side.

    some lower Federal courts, especially those with a liberal bias such as the 9th Circuit, have adopted a collective view

    The 5th circuit is, as far as I am aware, the only one that has, from time to time, taken an individualist view. This is not exactly uncontroversial in legal circles, it would appear. It does not of itself show that the individualist view is “correct” or more meaningful, of course.

    whatever your view of the 2nd Amendment (and I happen to think your view makes no logical sense)

    And I happen to think the individualist view makes no logical sense. Then again, I don’t understand the fixation with guns in certain circles.

    the issue of whether the 2nd Amendment is an individual, collective or quasi-collective right is still open

    That’s something of an exaggeration. There is some (limited) debate in legal circles. The vast majority of the individualist lobby is political, not legal, and the debate is a political one.

    In this context, the well argued and referenced DoJ finding will, I predict, be a very important document in any case before the SC

    Quite possibly, but SO WILL THE OTHERS which reach the opposite conclusion. It should not be thought the DoJ opinion is final or conclusive, or even necessarily persuasive or for that matter accurate. It’s just an opinion.

    EG

  • John K

    The DoJ opinion, for the umpteenth and last time, is OPINION. It is NOT a statement of the law. One can ready numerous well researched and scholarly papers from other jurists which reach the opposite conclusion. They cannot both be right, and the fact that one of them is the DoJ does not mean that party is right.

    I somehow think if the DoJ had come down on the collectivist side you would attach greater weight to their opinion.

    No, I have not. I suggest you actually read some judgements on the matter. You will find that the overwhelming consensus of the courts is pretty emphatically on the collective side.

    Yes you have. I have read the cases you cited, and I agree with the DoJ that the matter is not settled in law. Federal courts below the SC have come down on different sides of this argument, the SC has not finally spoken.

    And I happen to think the individualist view makes no logical sense. Then again, I don’t understand the fixation with guns in certain circles.

    Fair enough, I cannot see the logic of the collectivist position. You seem to be saying that the RKBA only exists when there is a militia connection. If the state does not raise a militia, there is no RKBA. Thus the RKBA depends on the attitude of the state towards the militia, and is therefore no sort of a right at all. Makes me wonder why the bothered putting it in the Bill of Rights, it should have been in the Bill of Things You Can Do If the State Lets You, which does not have the same ring to it at all.

    Quite possibly, but SO WILL THE OTHERS which reach the opposite conclusion. It should not be thought the DoJ opinion is final or conclusive, or even necessarily persuasive or for that matter accurate. It’s just an opinion.

    If any other opinions are as well sourced and referenced as the DoJ finding then so be it. But I stand by my point, that as the DoJ (who ought perhaps to know?) states, this is still a live question in law. It is not as cut and dried as you have made out. Sorry, but you are wrong on this.

  • John K

    At last EG is silent….

  • Andrew Milner

    Was recently roaming around Okinawa recently, and this example of Surveillance State in reverse may be relevant. Japanese in-car satellite navigation (SatNavi) has a particularly interesting feature: Enter the phone number or address of your destination and the system will take you straight to the door. Stalker considerations would appear to guarantee that this feature will never be offered in Cell Block GB. A lady disclosing her phone number during a nightclub chance meeting could find she has the dude on her doorstep next morning. However, I understand German taxis are fitted with this technology. Wonder if it works for mobiles. When it comes to technology, don’t you get the feeling that Britain’s in the Second Division?