Enough abortion for one day: let’s have a Comment of the Day on another unending Supreme Court controversy, the Second Amendment. Here is Jutgory’s passionate response to the post, “From The “Appeal to Authority” Files: Why Should We Care What John Paul Stevens Thinks Now?”:
So many pet peeves all wrapped into one post:
“Bloviating about Columbia v. Heller, the 2008 decision holding that the Second Amendment created an individual right to bear arms”
NO! The Bill of Rights created no rights. It identified rights upon which the government could not infringe. This is as old as the Constitution. The Federalists said, we don’t need no Bill of Rights because powers not given to the government could not be exercised (naive and idealistic. The Anti-Federalists insisted but wanted it to be clear that the enumeration of the Bill of Rights was not exhaustive of the rights we had.
Sadly, they were both wrong: we needed the Bill of Rights because government seizes power when it can, and, not only do we look at the Bill of Rights as creating rights, we look at it as delimiting the rights we have.
You are spot on about rights not being subject to need. I know many people who don’t need freedom of speech and have hardly exercised that right in a constructive way, but they have it nonetheless.
On the argument that the Second Amendment is limited to militias. First off, see the above argument about rights.
Second, it ignores history. I make it a habit of reading the Declaration of Independence every 4th of July. Doing so has really informed my understanding of the Constitution. Here are some relevant tidbits in the Declaration’s complaints about King George:
“He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”
“He has affected to render the Military independent of and superior to the Civil Power.”
“For quartering large bodies of armed troops among us”
The Founders never contemplated standing armies and did not want them. While Congress was given the power to raise an army, the standing army we have now is a relatively recent thing.
It also explains why they made the President the Commander in Chief of the armed forces.
And, it explains the 3rd Amendment regarding the quartering of troops in times of peace.
MILITIAS WERE SUPPOSED TO BE THE MAIN LINE OF DEFENSE IN TIMES OF PEACE!
In fact, 10 USC 246 states : “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”
We have a militia. It’s practically everybody (though all current members of the Supreme Court have aged out).
Stevens SHOULD know all these things. Well, in my opinion, every American should be taught these things.