Was there even a concept of “collective rights” floating around in the intellectual milieu of 18th century America?
At any rate, the constitution, in the 10th amendment, clearly recognizes the distinct entities of “the people” and “the states”. If this was a state power, then why doesn’t the 2nd spell it out as such? Instead, it is a right of “the people” independent of any state.
As for the “insurrection theory”… whether it is “nonsense” or not in the modern sense, there is no reason to assume that the Founders weren’t capable of a little nonsense now and again. I find it extremely easy to understand their fear, rational or otherwise, of “tyranny”.
The problem with “Any time soon” if you follow the line of reasoning that the government needs to be forced to govern (versus oppress) it’s populace, is that if you start to take away guns for whatever reason it’ll slowly erode the people who have guns, which means the government is slowly shifting the balance of power away from the populace and into the hands of the government.
I can see and understand their argument, as well as see the historical backings they refer to for support, but I’m not sure if I’m convinced of the argument. It works in other places without guns, but they also have vastly different Social/Corporate/Governmental cultures in those places.
In reference to your outsider-looking-in perspective, it’s less than helpful that the US is seen as a single entity, even by it’s own citizens, instead of everyone realizing that the US is an interdependent confederation of not only states but also differing cultures between different areas of the country. A common practice near me is to have guns for hunting (including “Assault Weapons”) that are fairly benign. A place like Chicago or NYC doesn’t have that sort of culture.
Think of the differences between the UK and France (despite those relations generally warming over the last 25 years). That’s the kind of cultural differences between differing areas of the US.
So you have people in the cities who have no need for them versus people in cities that hunt constantly with them versus versus people in cities that protect themselves from people with them versus people that live in rural areas that both hunt and use them as protection from animals/people.
This is why it’s so hard to come to any sort of consensus regarding what to do about them. Sane and reasonable in NYC is completely different than sane and reasonable in Helena (Montana). It doesn’t help that the polar extremes of the debate are dominating the political debate in the news media. “Take them all!” versus “Let’s all have howitzers and nukes!” doesn’t help anyone decide anything useful.
Not really. In your OP, you state that the president is the CoC of the militia, but you left out an important caveat. The actual text says (emphasis added):
" The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"
His authority of the militia of any state is limited.
Good point. But I’m not sure that’s what being offered up here. I think the term "collective right’ is used in the sense that it is NOT an individual right. That is, the individual does not retain that right unless he is acting as part of a group. Those examples are still examples of rights that each individual retains, even as a single person.
I don’t think that’s right. The right of revolution is not an individual right in any meaningful sense.
Locke’s idea was that individuals consent to a social contract, but that the social entity thereby formed has certain rights and obligations apart from the individual.
But in the case of the Constitution, the social entity is the government, which means a collective right isn’t a right at all, but an enumerated government power. It would be very odd to insert such a thing into the Bill of Rights.
No, I don’t think that’s quite right. The Founders’ view was that “the People” is a collective entity that is separate from the governmental union they form. The People retain certain rights and obligations as to the government, and vice versa.
I’m not taking a position as to what this means for the Second Amendment. I’m just saying the concept of a collective right is obviously not foreign to 1789.
In order for something to be a “Collective Right” it has to have an individual form. If you have a collective right to a revolution, you must have an individual right to be a revolutionary. You can’t have the collective revolution without the people that are apart of it, after all.
So, if people are allowed to bear arms as a collective, they must have the right to bear arms as an individual, unless you can setup some means for a mob of people to acquire guns once they hit a certain member limit, which is…an odd thing to think about.
You can give up some of those individual rights to a governing body (“social contract”) but that’s governed by the founding documentation. In this case, the Constitution that gives rights to bear arms. If it’s collective and apart from government, then it’s individual also. If it’s collective and bound to government, then it’s not also individual.
Like I said, I guess it could be a state right, which would allow for state-level gun control, but it would also bar federal gun control measures completely if that was true.
I think it’s more likely that it is an individual right, but not one as absolute as the 1st amendment rights.
OK. But it still seems to me that the individual right is simply not practical, but it should theoretically still be there. Would Locke have thought that the government had the right to tyrannize one individual as long it wasn’t tyrannizing a large group of people?
As you might guess, there have been gallons of ink spilled about what different conceptions of a collective right to bear arms looks like. And it is not the case that every conception either involves an individual’s complete and independent right to own and use arms or else involves the right of the states. There are many degrees in between that seem to be evading your political imagination.
It is true that every collective right entails some individual right. But the nature of collective rights is that the bounds on the exercise of the consequent individual rights are set by analysis of some collective category or indeed by collective action. Thus, for example, the determination of when the right to revolution arises is not and cannot be made by a single individual, nor by analysis of a single individual’s circumstances. It is determined by certain collective analyses and indeed by collective action, even if that collective analysis and action eventually empowers individuals to act as revolutionaries.
As Locke said:
Again – not claiming at all that this is the case with the Second Amendment. Just saying it is both within the realm of logic and history for such an animal as a collective right to exist.
That is true, but only if the collective is tied to the social contract. If you look at the first amendment to the constitution, “the people” is a collective term that is not tied to government. This form of collective doesn’t fall under the social contract.
This debate highlights the two (I know there’s more, but basically two) different ways of reading things. Suppose we had an amendment that said:
“The people shall have the right to keep quill pens and ink at all times.”
Then a debate comes up about ball point pens, mass publication, or internet blogs.
View #1: The constitution says only “quill pens and ink.” That is all. If you want protection for other stuff, amend the constitution.
View #2: The purpose of this amendment is to allow easy dissemination of thought and information. A quill pen in 1792 is the equivalent of an internet blog today. An internet blog is protected.
There are good and bad sides to both interpretations. I go with view #1 just so judges can’t inject their own views into debates.
I would argue that #2 is best as long as it’s in line with the original sentiment. Otherwise you would have a situation arise where the law is effectively useless. For instance: “We give them quills and ink. Paper is illegal as is transmitting information. But we give them all the quills and ink they can keep.”
The intent in laws is very important. Was it important to the framers that people have access to quills and ink for kinky sex games or for disseminating information?
We actually have precisely this debate going on right now: freedom of the press. Freedom of the press refers to the printing press(some mistakenly believe it means the professional news media). The printing press was the state of the art way at the time to disseminate information widely. Today it’s the internet and television.
