Fed Soc Debate

The Federalist Society Debate:

InstaPundit participated in a Federalist Society debate on gun rights and the Parker v. D.C. case. (I think his point on them denying cert to the case is a canny one.) It's interesting.

As usual, the debate centers on whether the "militia" part of the 2A overrides the "shall not be infringed" part. The main collectivist argues that the phrase "bear arms" had an exclusively military context in the 18th century, for example; and therefore that the right must pertain only to military uses.

It seems an odd point to me. It's obvious from the literature that (a) the Founders expected the states to maintain a militia, and also (b) that they are securing a "right of the people" rather than a "power of the states." There are two other uses of the phrase "right of the people" in the Constitution, in the 1A and 4A, protecting what are clearly individual rights. There is no reason to believe -- indeed, it would be an extraordinary claim -- that the Founders used the same phrase both right before (1A) and right after (4A) the 2A, but intended the middle use of the phrase to carry a wholly different meaning from the other two.

The government does not bother to regulate the militia, but that does not invalidate the right. That the government falls down on its part of the bargain should only strengthen the individual right, not wash it away. The 1A use of the term "right of the people" guarantees a right to petition the government for redress of grievances. If the government refused to redress any grievances, the right to make the petition would still exist.

More, the refusal of the government to accept petitions for redress would amplify rather than suppress your right to make such petitions. It would be just to make louder petitions, more frequent petitions, not fewer and softer ones.

If the government has fallen down on the business of regulating the militia, that has increased rather than suppressed the danger of modern society; and it has therefore amplified rather than minimized the right to bear arms. If Americans were trained as militia and regularly bore arms about themselves in that capacity, we would find little need to worry about terrorists or hostage-takers or even common criminals. Since that is not the case, our reason to carry arms in self defense is only increased.

The government's failure should never be read as a reason to limit the rights of citizens. When the government fails to execute its duties, the citizens' rights amplify. They are the ones who must make up the difference; and so they need more and greater rights, not fewer and less.