Laci - ok you have me confused now. Are you now agreeing that the 2nd Amendment grants an individual right as determined in Heller? Are we now down to determining what restrictions are legal and which are not?
As far as the collective vs. individual argument of gun ownership goes, this is my take on it.
Collective means for the militia (as it was known in 1790). Individual means everything else.
Obviously the wording of the 2A refers to the collective right, and since the concept of militia has not existed for a couple hundred years, the amendment is obsolete.
Not really, if one is going to make a statement that it's an individual right like all the other ones in the Bill or rights, one needs to understand what the term "individual right" means.
So, in a way it is a trick question--how can one assemble on one's own?
But is it a right that is enforcable by individuals?
The "individual right" mumbo jumbo turns on two things:
1) the term "people" in the Second Clause 2) That the right is applicable to non-militia uses.
Saying that the right applies only to the militia is less problematic than saying it applies to the people.
Of course, this requires a venn diagram to understand.
The easiest way to explain this is that the first clause limits the second.
I'd be cautious about using "the right of the people peaceably to assemble" as an example of a "collective" right. If we start to do that, then it might be possible to establish laws restricting assembly only to, say, city councils, or legislative bodies. I can hear it now, "Hey, the city council is elected and represents the people, right? So let's prohibit those pesky liberals that lost the election from assembling!" Um, no. And without parsing the Bill of Rights too much, there's the other part after the comma after the word "assemble". "...and to petition the Government for a redress of grievances." No one could possibly want that to be anything but an individual right.
Saying that a right is an individual right is a nebulous statement.
All rights are enforcable by individuals.
The real issue is what does the right apply to?
Thus a right can be exercised by a group, yet be an individual right.
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Your question was whether "the right to peacefully assemble a collective right or individual one." My response is a suggestion not to consider it a "collective" right.
You suggest that a right can be exercised by a group, but still be considered an individual right. Would you modify your statement with "exercised ONLY by a group"? If so, then how would an individual enforce that right, particularly of assembly? If the right is for the Labour Party to assemble, or the J K Rowling Fan Club assemble, can I force that group to accept me as a member? Is that what it means?
Similarly, how would an individual enforce a 2nd amendment right if the right is understood to be the right for the militia to arm its members, and only its members?
My opinion that the perfect Second Amendment test question is someone who is male within the 18-45 age group who wishes to join the militia without having served in the US army.
As an individual, I do not need the government's permission to meet with anyone else to discuss how the King is a fink. To understand it a different way, consider that the crime of conspiracy is, at least in the US, the case of two or more individuals agreeing to break the law at some time. Now, that agreement would almost certainly involve either a small meeting, or phone calls, or emails, or something that would link the co-conspirators. There is no defending against that charge on 1st amendment grounds (curses on that adverb "peaceably"!!). However, the prosecutor does not charge the conspirators as a group. Rather, the individual is charged even though the conspiracy involved more than one individual.
An individual suing to be part of the militia because he/she does not meet certain qualifications and he/she believes the qualifications are discriminatory would probably have more luck with other legal tactics than a 2nd amendment appeal. The precedents there would be the business vs employee rulings made in the past 20 years.
Laci - ok you have me confused now. Are you now agreeing that the 2nd Amendment grants an individual right as determined in Heller? Are we now down to determining what restrictions are legal and which are not?
ReplyDeleteJim, you're so smart,you can figure it out for yourself.
ReplyDeleteWell as you point out Laci, I am not that smart. What were you trying to say with this post? Is there an individual right or not?
ReplyDeleteIS the right to peacefully assemble a collective right or individual one?
ReplyDeleteNow that's a trick question about assembling.
ReplyDeleteAs far as the collective vs. individual argument of gun ownership goes, this is my take on it.
Collective means for the militia (as it was known in 1790). Individual means everything else.
Obviously the wording of the 2A refers to the collective right, and since the concept of militia has not existed for a couple hundred years, the amendment is obsolete.
Not really, if one is going to make a statement that it's an individual right like all the other ones in the Bill or rights, one needs to understand what the term "individual right" means.
ReplyDeleteSo, in a way it is a trick question--how can one assemble on one's own?
But is it a right that is enforcable by individuals?
The "individual right" mumbo jumbo turns on two things:
1) the term "people" in the Second Clause
2) That the right is applicable to non-militia uses.
Saying that the right applies only to the militia is less problematic than saying it applies to the people.
Of course, this requires a venn diagram to understand.
The easiest way to explain this is that the first clause limits the second.
And both are important.
I'd be cautious about using "the right of the people peaceably to assemble" as an example of a "collective" right. If we start to do that, then it might be possible to establish laws restricting assembly only to, say, city councils, or legislative bodies. I can hear it now, "Hey, the city council is elected and represents the people, right? So let's prohibit those pesky liberals that lost the election from assembling!" Um, no. And without parsing the Bill of Rights too much, there's the other part after the comma after the word "assemble". "...and to petition the Government for a redress of grievances." No one could possibly want that to be anything but an individual right.
ReplyDeleteOur anonymous poster misses the point.
ReplyDeleteSaying that a right is an individual right is a nebulous statement.
All rights are enforcable by individuals.
The real issue is what does the right apply to?
Thus a right can be exercised by a group, yet be an individual right.
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Your question was whether "the right to peacefully assemble a collective right or individual one." My response is a suggestion not to consider it a "collective" right.
ReplyDeleteYou suggest that a right can be exercised by a group, but still be considered an individual right. Would you modify your statement with "exercised ONLY by a group"? If so, then how would an individual enforce that right, particularly of assembly? If the right is for the Labour Party to assemble, or the J K Rowling Fan Club assemble, can I force that group to accept me as a member? Is that what it means?
Similarly, how would an individual enforce a 2nd amendment right if the right is understood to be the right for the militia to arm its members, and only its members?
My opinion that the perfect Second Amendment test question is someone who is male within the 18-45 age group who wishes to join the militia without having served in the US army.
ReplyDeleteAs for assembly, how can one person assemble?
That is a zen koan.
As an individual, I do not need the government's permission to meet with anyone else to discuss how the King is a fink. To understand it a different way, consider that the crime of conspiracy is, at least in the US, the case of two or more individuals agreeing to break the law at some time. Now, that agreement would almost certainly involve either a small meeting, or phone calls, or emails, or something that would link the co-conspirators. There is no defending against that charge on 1st amendment grounds (curses on that adverb "peaceably"!!). However, the prosecutor does not charge the conspirators as a group. Rather, the individual is charged even though the conspiracy involved more than one individual.
ReplyDeleteAn individual suing to be part of the militia because he/she does not meet certain qualifications and he/she believes the qualifications are discriminatory would probably have more luck with other legal tactics than a 2nd amendment appeal. The precedents there would be the business vs employee rulings made in the past 20 years.