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Heller and Scalia

Our friend Kip has just moved his blog to a new site, and it looks great. I mention this because I would like to direct everybody's attention to Kip's article on the Heller decision earlier this week. I always enjoy poking around to the blogs of various libertarian-leaning lawyers and seeing how their reactions to SCOTUS rulings compare with my own. I usually find that Kip and I share similar opinions, and when we don't, I always find his take to be very interesting and clearly articulated. At least, that I can remember.

In this case, Kip first quotes an article he had previously written:

[I]t would be absurd to suggest that, e.g., the First or Fourth Amendments did not guarantee individual rights but rather some contorted “collective right,” which is exactly what opponents of the Second Amendment try to do. “The people” means, well, the people! Persons, individuals. Freedom of speech for persons. Freedom from unreasonable searches and seizures for persons. Freedom to bear arms for persons. Not states — persons!

He then notes that Justice Scalia said nearly the same thing in the Heller ruling:

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Okay, I am begging somebody who disagrees with this to stop and explain themselves. I mean, I honestly understand that some people hate guns, and some people are afraid of private gun ownership, and some people are just convinced that no private citizen should own guns, regardless of whatever is written on that old parchment. These are not the people to whom I am speaking. I am begging for anybody who believes that the Second Amendment addresses a collective right to explain their position as it counters Kip's point above. I just don't understand where you are coming from.

And for those of you who are celebrating Scalia's wisdom, I would ask that you try to address Kip's point about Scalia:

I am merely accusing him of being schizophrenic in his peculiar form of “originalism,” since he appears to be amenable to allowing the Constitution to evolve where technology is concerned, but not where morality or societal norms are concerned. I simply don’t see why the distinction is robust...

...the “original meaning” of the Second Amendment can’t possibly suggest, Scalia insists, that “arms” only means what it meant in 1791 (e.g., muskets and hunting knives). But Scalia is infamous for insisting that “due process” — or “establishment of religion” or “cruel and unusual punishment” — can’t possibly mean anything other than what they meant in 1791 (or 1868). I just don’t get it.

Neither do I. But I'd love to hear your thoughts.