Professor Volokh has some thoughts:

I want to claim that this echo of Weber (who said "Today ... we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory") is utterly inapt in gun control debates, at least such debates in a Western country.

To begin with, note that, read literally, my friend's proposal is not "old-fashioned." It's not new-fashioned. It has never been the fashion in any jurisdiction in America.

Eh, as is often the case with Professor Volt, he brilliantly describes the trees, but needs glasses for the forest.

The first resolution of the tension is one to which he already alludes: the idea that the state has a monopoly on the use of force does not imply that only the state can use force. Just because Ma Bell once had a monopoly on phone calls doesn't mean Ma Bell never used subcontractors. The state is perfectly free -- would, generally -- "subcontract" some of its right to use force: to the militia, to the police, and, yes, to individuals.

There are quite a lot of people who believe this, who believe we get our rights only from the state, and only to the extent the state grants them. It's even consistent with our Constitution, although not with the Declaration of Independence (which speaks of inalienable rights from our Creator), which fact explains no small amount of intramural strife throughout our history.

The second resolution of the tension is to realize that one is really talking about organized violence in pursuit of public goals, and the quote isn't meant to touch on such individual issues as immediate self-defense, whether from other humans, vicious dogs, or falling tree branches. The idea is that the state appropriates to itself the right to organize people into violent organizations -- armies, militas, posses. Private armies are disallowed, in other words. (And it's worth noting that this was at one time a revolutionary thought. Throughout much of post-Roman European history, the private army was the foundation of local civilization, and to the extent a "state" existed at all, it was a temporary alliance of those armies in pursuit of common goals.)

While either interpretation can be debated, and neither is obviously true or good, it's also the case that neither is obviously stupid, and their existence should disallow the reduction of the quote to the caricature that Professor Volt rightly dismisses.

Johnson Space Center is shut down. "A person with a weapon" is currently holding the entire center hostage.

One person. One weapon.

What does that imply for Mark's belief that NASA will somehow defend the Moon against hordes of Chinese invaders?

> There are quite a lot of people who believe this, who believe we get our
> rights only from the state, and only to the extent the state grants them.
> It's even consistent with our Constitution

On the contrary, the 9th Ammendment clearly states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I agree reasonable people can differ, Edward, but the Constitution asserts at the beginning that "the people" are sovereign and then lays out a representative form of government that speaks for the people. There is a clear distinction between "the people" and people in the ordinary sense of individuals. This is why anti-gun folks can with some degree of plausibility claim that it's unclear whether "the people" in the Second Amendment means the people acting as a whole -- in the same way they "act" in your generic murder trial The People vs. Joe Defender, i.e. through their representative government -- or people as any random individuals.

As I said, reasonable minds can differ on what, exactly, is meant. Probably the Founders couldn't quite agree themselves.

The D of I is a little clearer, in that it expressly states that certain rights come straight from God (or whoever), and do not pass through the hands of any representatives of "the people". Probably Jefferson wanted to stress this point because he was actually rejecting the similar idea of his day that rights pass through the sovereign entity -- at that time, the king.

In other words, my read on the history is that in order to justify flinging off the king, the Founders had to assert that people as individuals had rights notwithstanding the decisions of any sovereign entity, e.g. a king. Later on, when they wanted to establish their own sovereign entity ("The People") they backed off that a smidge, or at least left it ambiguous enough that we've had 200+ years of Supreme Court argument about who, exactly, is given the right to speak freely, bear arms, peaceably assemble, and so forth.

It's a very hard case to make that "The People" means one thing in the First Amendment, and something else in the very next amendment. There is little dispute on this among people who have actually read the Federalist Papers. Even liberal constitutional lawyer Larry Tribe agrees with this.

A good point, Rand, although people do it all the time. For example, I'll bet the very same folks argue that the First Amendment gives an absolute right to free speech to a private organization of "the people" like The Los Angeles Times, but the Second Amendment does not give a similar absolute right to, say, the Los Angeles Evil Assault Weapon Club.

If people's heads exploded every time they indulged in wildly inconsistent arguments, the population would dwindle drastically. And it's not obvious the average intelligence would rise thereby, either.

> I agree reasonable people can differ, Edward, but the Constitution asserts
> at the beginning that "the people" are sovereign and then lays out
> a representative form of government that speaks for the people. There is a
> clear distinction between "the people" and people in the ordinary sense
> of individuals.

Carl, I think it's quite clear that the Founding Fathers did mean people in the "ordinary sense." If they thought "the people" meant the State, then saying the government speaks for the people would be nothing more than a meaningless tautology.

> This is why anti-gun folks can with some degree of plausibility claim
> that it's unclear whether "the people" in the Second Amendment means
> the people acting as a whole

You're overintellectualizing. The Constitution was not written by psychics were channeling Marxian collectivist language from a later era. It was written by a group of people (individuals) who had just banded together to overthrow a government that was oppressing them (using arms). There is no plausible argument that they thought only governments should be allowed to own guns. "The people" meant the people, not the government.

Modern thinkers also tend to miss the connection between individual sovereignty and the right to bear arms. In Europe, historically, only nobles and "gentlemen" had "the right to bear arms." Ordinary people did not. "Arms" referred both to heraldic emblems (what most people today call "coats of arms," although that term is not strictly accurate) and to weapons. There was no distinction. An award of "arms" (the heraldic emblem) by the crown was a license to bear arms.

In America, the Founding Fathers were declaring that the people *did* have the right to bear arms; that every American citizen was, in fact, a gentleman with the rights of a gentleman. In America, the right to bear arms did not come from the sovereign crown but from the sovereign individual. That was a very bold and radical statement, which would have been understood as such in the politics of the time.

Edward, I agree with you. No argument, and I like the distinction between the right to bear arms in the neonatal US versus European tradition. (Although..it's not clear the Framers didn't have some feudal restrictions on who would bear arms in mind. I doubt they all were comfortable with servants and women having an absolute right to bear arms, for example. If pressed, they might have admitted that they meant only the natural heads of households, those who could vote; more or less the class of propertied men.)

I'm just saying they were enough ambiguous about the exact source of rights that they've left room for reasonable people to disagree on to what extent a right of The People can be exercised by any random person.

After all, they certainly agreed The People had the right to overthrow their own government, by force if necessary. They just had, and they were at pains to explain that it was all legal and proper as church on Sunday. But that did not imply that any one person or small group (or even large minority, such as the Confederacy) could freely exercise that right and take up arms against the Federal government. Clearly there was some gradation, some variation between rights that could only be exercised by The People acting as a whole -- either directly, by majority action, or through elected representatives -- and other rights that, indeed, could be exercised by any one person. Where the right to bear arms falls on that spectrum can legitimately be debated.

Again, I agree with you about where it does. I'm just saying the case isn't so clear-cut that people who think the other way can be accused of arguing in bad faith.

Again, I agree with you about where it does. I'm just saying the case isn't so clear-cut that people who think the other way can be accused of arguing in bad faith.

Posted by Carl Pham at April 21, 2007 03:44 PM

Nicely stated Carl.

I like the "garbage collector" analogy, fondly imagining that I thought it up myself.

It is my responsibility to keep my place sanitary, including disposing of garbage. I find the work unpleasant and the duty inconvenient, so I hire a garbage collector -- or, rather, I and my neighbors form an association to mutually hire a garbage collector. The contract we make with the garbage collector entitles him to violate our rights in a small way, i.e., he is entitled to trespass on my property in certain areas in order to pick up the garbage. That contract does not authorize him to trespass in other areas (for instance, it doesn't permit him to come and peek in the windows), nor does it restrict my right to move freely about the property.

If you assume that "We the People" has at least as much force as "promote the general Welfare" -- and why not? It's all one document -- then the People possess the sovereignty, with all the rights and privileges appertaining thereto. If you then apply the garbage collector analogy, the situation is clear. We the People find day-to-day management of civil affairs to be tedious and unpleasant. We therefore hire representatives to perform the duties we find personally odious. The contract under which our hirelings operate, the Constitution, gives them the privilege of violating our rights in certain enumerated and circumscribed ways in order to do their work; it does not empower them to violate our right of sovereignty in other ways, nor does it circumscribe our own rights and privileges except where explicitly specified.

Under that rubric there is no tension between "State monopoly of violence" and possession of arms by the People. The Sovereignty is unquestionably entitled to arm itself -- and as We the People are the Sovereignty, the question is moot.

Incidentally, the word "State" is entirely misleading. The Founding Fathers and others, their contemporaries, rarely used the word or the concept; well past the mid-Nineteenth Century what they said instead was "nation", which has a subtly but importantly different meaning. Using "State" to conflate "government" and "sovereignty" is an innovation of Marxist political theory, and about as valid as the rest of it.

Regards,
Ric

Thank you, Offside.

Ric, I think your garbage collector analogy is fine, the only slight suggestion I'd have is that you not say the garbage collector trespasses. He doesn't, because you define what "trespass" means. It's not trespass if you yourself enter your property, or your children, or tradesmen or guests that you invite. You're the property owner, you get to define what "trespass" means.

I think it's the subtlety of who the "owner" of our rights is that is part of the problem. Who says what, exactly, it means to have the right to free speech? The People are sovereign, granted. But how do The People decide what, exactly, free speech means? We've never come to a fully satisfactory conclusion. If you say only The People acting collectively (either through majority vote, or through elected representatives, or appointed judges) can define that question, you end up wondering if there is any real right at all.

I mean, of what value is "free" speech if a judge somewhere can specify exactly what you can say, and where, and when? That's no more free speech than your freedom to walk to any corner in a jail cell is true freedom.

On the other hand, leaving the definition of what you can and can't say, and where and when, to every individual person is a recipe for chaos. People can make prank calls to the firemen and police and put lives at risk, or shout "fire!" in crowded movie theaters, et cetera.

Similar arguments apply to the use of guns. OK, fair enough, The People have the right to arms themselves. But who decides exactly how and where and with what? If it's entirely in the hands of the judges and legislature, the freedom has no real meaning. If it's entirely in the hands of every individual, we get armed chaos. Once again, drawing the precise line is hard, and we haven't really succeeded yet.

Perhaps we never will -- and perhaps this is a good thing. The fact that the line remains fuzzy and ill-defined means it can sway back and forth as conditions change. Maybe it gives us some useful flexibility as a society.

> I'm just saying they were enough ambiguous about the exact source of
> rights that they've left room for reasonable people to disagree on to
> what extent a right of The People can be exercised by any random person.

Reasonable people can disagree about many historical facts. Otherwise reasonable people may claim that Apollo never landed on the Moon, Leonardo da Vinci was Grand Master of the Priory of Sion, and the US government recovered a crashed saucer from Roswell. Reasonable people can certainly believe the Founding Fathers favored gun control -- but the historical fact is that the Second Ammendment was added to the Constitutional to prevent such people from using government to force their view on fellow Americas.

> But that did not imply that any one person or small group (or even large
> minority, such as the Confederacy) could freely exercise that right and take
> up arms against the Federal government.

That is not clear at all. Up until the Civil War, many (if not most) Americans considered the Union to be a voluntary association of states, which had the right to secede at any time. The questions was ultimately settled on the battlefield, not in a court of law. (Lincoln was quite willing to ignore the courts and Constitution when necessary, at least in wartime.)