Why is the Second Amendment different from all other rights?

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4 Responses

  1. Brett Bellmore says:

    The Second amendment is the same as other rights. The judiciary’s attitude toward it is different, because hostility towards that right is endemic in the legal community; It represents an attitude towards the relationship between government and citizen which is widely rejected by modern academia.

    Essentially, embracing Weber’s definition of the state precludes understanding a constitution written by people who sought to create a state whose power was derived from the people, where the right to violence was only partially and conditionally delegated to the state. Nowhere is this conflict of visions as to the proper nature of the state more glaring than when it comes to the 2nd amendment, which embodies the founders attitude towards violence and government.

    An attitude which was positively anti-Weberian…

  2. Joe says:

    “The Second amendment is the same as other rights”

    Except to the degree that it’s different.

    Any number of acceptable limits (including not selling five year old real guns) are not present in other cases (five year olds can buy a real book).

    Respect for constitutional rights involves respecting their complexity.

  3. A.J. Sutter says:

    I’m afraid I don’t understand why the vocabulary of (Coasean) costs, externalities, etc. should be germane to Constitutional analysis at all. I leave aside for moment the issue of originalist hermeneutics vs. other alternatives. Even at a more basic level, it is very easy to get tripped up when applying quantitative concepts where they don’t necessarily fit.

    A good example is your comment at pp. 10-11 of the paper, “Securing liberty is inversely proportional to the power of the state to order society.” First of all, this is ambiguous because of the lack of parallelism between “securing” (gerund) and “the power” (noun phrase). Do you mean the ability to secure liberty, the security of liberty, or what? If “the ability to secure”, then whose ability? And so on.

    Next, what’s the liberty? Might there be a difference in how we evaluate the proposition if the liberty involved is, e.g. (a) the liberty to have sex with whom I choose, (b) the liberty to marry whom I choose, or (c) the liberty to vote for whom I choose? Without some ability of the state to order society, (c) is meaningless, yet (c) is a classic example of a Constitutionally-protected liberty. Example (b) also may require some power of the state to order its affairs if by “marry” we understand a status that has certain legal consequences. Example (a) may seem like the epitome of an individual liberty, but have I really “secured” this if I’m in danger of being lynched by a mob that disapproves of my choice of partner? (to choose another historical example). Without some ability of the state to order society so as to maintain the health, safety and welfare of citizens, my liberty (a) is highly insecure.

    But of course, if that state power is too strong, then I again might lose my liberty (a). So then maybe “inversely proportional” isn’t right, maybe the relationship is more like an inverted parabola, where there’s an optimal level of state power that maximizes the security of my liberty — but what’s the equation of that parabola? How can we determine the amount of state power that maximizes my liberty? Maybe this is the appropriate inquiry, one might naïvely think. But there’s an anterior question: in what units should we measure my liberty, and state power, in order to get a suitable equation ? Or maybe we should think of the inverted parabola as simply some kind of vague analogy or metaphor, not meant to be made numerically exact…?

    In short, your dragging of costs and other quantitative neoclassical concepts into this seems like simple scientism. The jargon seems intended to make the analysis appear more precise (see, e.g. at p. 11: “Even if dangerous, when a liberty is protected by the Constitution, its social costs take on a constitutional dimension and consequently demand judicial protection —— or more precisely, judicial toleration of the negative externalities,” emphasis added), but in fact can’t avoid a good deal of dubious reification and hand-waving. And as the matter of liberties (a), (b) and (c) shows, a great deal of subtlety is also lost when one tries to frame legal principles in the form of mathematical propositions. I don’t see what benefit there is over Constitutional analysis based on more qualitative principles, which also has the virtue of being more in the spirit of how the document was originally intended.

  4. Josh Blackman says:

    A.J.,

    I replied (in part) to your point about the inverted parabola at some length in this post: http://www.concurringopinions.com/archives/2011/07/the-curves-of-social-cost.html

    Thanks for your thoughts