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

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

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?

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.

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.

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

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.

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

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.

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.

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

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:-)

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.

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).

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.

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

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

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.

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

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

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.

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

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

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

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

EG

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.

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.

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

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

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.

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

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'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

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?

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.

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?

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.

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

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.

"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.

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.

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

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 ci