The rights of the people: now available, for the first time, to the people!

Jonathan Turley writes a nice op-ed on the second amendment:

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that ... here's the really hard part ... the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

I've always had a hard time believing that people who thought the right of "the people" was a collective right could be arguing in good faith--at least, not if they'd read the rest of the constitution. After all, no one would take seriously an argument that the right of "the people" in the fourth amendment "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" was a collective right that could only be enjoyed if you joined the National Guard.

Turley is not the only liberal legal scholar who has turned on this interpretation, and it seems to bode a welcome retreat from the notion that the constitution means--whatever we think it ought to have meant. Having realized that a plastic constitution could also, horrors, be manipulated by people they disagreed with, the "living constitution" proponents seem to be retreating to the notion that constitutional interpretations ought to have a least a tenuous relationship to the underlying text. I'm not a constitution-worshipper, but I think society functions better if you change the rules by changing them, not by declaring that they mean whatever those in power say they do. Yes, I'm aware that this happens to some degree in every society, but the less of it the better, thank you very much. We needn't make the perfect the enemy of the reasonable.