Wednesday, February 28, 2007

Constitutional Rights and Limits

So over at BlueOregon, I started a firestorm with a purposely-provocative post about guns. I don't wish to go further into that question, but a surprising meme did crop up in response to a question Kari posed in comments:
In your view, are the regulations on owning fully-automatic weapons a violation of the 2nd Amendment - or not?
A number of gun-rights advocates found the site and carried on a spirited debate, generally emphasizing the inviolability of the 2nd Amendment. (Sample comment: "I, and many other 2nd Amendment supporters believe it [banning automatic guns] does violate the spirit and words of the Second.") Pressed on it, they add comments like "There is no "except for machine guns and short-barreled rifles" clause in the 2nd amendment."

I was unaware that so many Americans misunderstood the extent to which the Bill of Rights protect individual rights--they are neither all-encompassing or absolute. Let's leave aside the second, how about the fourth:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This amendment has been so thoroughly eviscerated by various Supreme Court rulings that it's hard to see that there's any right left at all. Even the first amendment (which, admittedly, covers a lot of areas) has had a number of limitations cited by the Supremes. There is nothing sacred about the Bill of Rights, nothing permanent, nothing above revision.

It is perhaps for these reasons that the gun-rights lobby is so keen to protect the 2nd--a badly-worded right that has been little-tested in case law. So long as legislation curtailing rights are not passed, they can't be challenged, and the amendment remains as robust as the lobby can keep it. Good for them--that's politics. But nowhere do rights exist that are outside the purview of legal review. Interesting that so few people know this.


Chuck Butcher said...

I wonder if you weren't a little carelss with a statement that rights are not free from legal review. Yes, actually they are, what is subject to legal review is alleged infringements of rights. From that point you can set precedent that a narrower view of a right is taken. No, you have no standing in any court to simply sat, "this right should be modified in 'x' manner." You have to write the law first and try to get the law past the legal challenges proposed on the basis of the right. The right stands as precedent. This is what got BushCo to finally back down on warrentless wiretapping, you can't just ignore it, you need a law first.

The President cannot simply walk into the Supremes and say, "the 1st doesn't cover blogging," first Congress has to write a law saying, "blogging isn't allowed" and after a person showing harm moves it throught the appeals it lands in the Supremes who can decide, "nope the 1st doesn't cover it because no paper is involved nor wave motion of air." or, "this is entire and complete bullshit, get that out of here."

This is the exact point of rights, they are presumed.

Maybe I'm quibbling, but I think you meant something other than what the words say.

df said...

I agree completely with Chuck. Individual rights are not in question (though some have argued that the 2nd is a state not individual right), it is when individual rights come into conflict that they must be sorted. I have the right, e.g., not to be slain by a gun owning individual unless I am threatening his/her life. So, do automatic weapons create a disproportionate infringement on my right not to be shot relative to an individuals right to own one?

Jeff Alworth said...

I'll buy careless. But I think the issue falls slightly into a gray area because the right itself is subject to interpretation. This is particularly true with the Second, where the language is so bad.

I do like DF's restatement. I spent about an hour reading through case law last night, and striking a balance is a main feature of the debates.

As to that states' right (to a militia) business, this is not a topic gun-rights activists are keen to engage.

iggi said...

i just view gun owners as hopeless paranoids.

that said, the majority people using guns to commit crimes typically don't buy them legitimately. we have never (and quite possibley can never) stifle the blackmarket for firearms. even if we could, people would just start hacking each other up with machetes or whatever else they could get their hands on.

better to just to let those poor paranoid bastards have a closet full of AK-47s then to rile them up by trying to take away their "rights", however poorly written.

Chuck Butcher said...

The big point is that while we all can argue about, for ex the 2nd, it stands until a law or regulation is passed which in some way challenges the previous understanding. It may seem a quibble but in regard to the government it is large - it is the statement to the govt that this is out of your arena.

Oddly enough, when it was written the 2nd was quite clear, intervening time and agendas have made it seem much less clear. BushCo is not the only outfit who has muddied waters trying to make things mean what they do not. No educated reader of the time would have mistaken a dependent clause for the operative statement, nor would they have created the meanings of it that modern "revisionists" attempt.

The Amendment with the most problems, in my mind, is the 4th - the hacking it's taken is a result of a "wiggle" word "resonable." The 1st has problems in the religion clause. The Framers' problem was that thy tried to avoid the Lawyer trap of making narrow easily dodged statements - see BuchCo on torture.