Stepping away from the First Amendment, let us move on to the Second. The Bush Administration, to pleasure of the liberal blog TalkLeft, has again supported the individual rights view of the amendment. Meanwhile, they harm the overall idea of state militia by sending the national guard overseas to Iraq, adding insult to injury by giving them less benefits. This suggests to me a sort of "missing the point" aspect to the argument.
The Second Amendment itself speaks of individual rights, but for a particular purpose, which is notable because preamble purpose clauses are rare in the Constitution.* So, when the amendment talks about a "well regulated" (which some strong individual rights theorists argues means "make regular" or keep smoothly running) militia "necessary for a free state" (Art. I, sec. 8 suggests the militia's role here is domestic in nature), we should take notice. Also, "militia" has a certain meaning: it doesn't mean everyone and sets up certain responsibilities. For instance, an AP story reported:
Near the end of her short life, Shayla Stewart, a diagnosed manic-depressive and schizophrenic, assaulted police officers and was arrested for attacking a fellow customer at a Wal-Mart store where she had a prescription for anti-psychotic medication.
Showing a corporate loyalty that might be appealing except for the circumstance, Stewart bought a shotgun at another Wal-Mart just seven miles away, and used it to kill herself. Her parents are suing** Wal-Mart, but the problem appears to be the law itself. A generally commendable privacy law blocked the use of her prescription and mental health records, though it doesn't discuss the arrest records. She herself marked "no" on the question relating to the former, thus it was not a great determinant on whether she was "involuntarily committed to an institution or declared dangerously mentally ill by a judge."
In general, a dangerous loophole, helped in some areas by lack of good centralized and cross-checking computerized record keeping. And, a blatant violation of the spirit of the Second Amendment, which brings with it a duty along with a right. What part of "well-regulated" is so hard to understand? It is basically pointless to complain about the administration's position because an honest look at national opinion (putting aside constitutional analysis) will show that people in general support a basic right to own a gun.
The best attack is to focus on problems like this. And, it will be a lot easier if people do not think you just want to take all their guns away. A fear that is exaggerated but not as much as one might think given some of the rhetoric on the anti-gun side. As to this particular case, the interests of privacy are quite important, but those who buy a gun have a somewhat lesser expectation of privacy.
And, the constitutional claim? I remain of the mindset that the Second Amendment has a states rights flavor, and the individual rights view should look at least in part elsewhere. The Fourteenth Amendment seems to me an ideal place to go because it focuses on the individual rights of national citizens. The amendment (thanks to Professor Akhil Amar for the image) distills the Second Amendment into its personal rights component.
Also, as used by the dissenting judge in a federal case that upheld a ban in a Chicago suburb, the right to privacy works as well: self-defense protects one's body and home, the latter in particular the concern of Thomas Jefferson, who focused on owning guns at home. I'd add that equal protection also factors in here, especially since the 14th Amendment in general originally was concerned about free blacks, who found that a right to defense was rather essential. Women and other groups might also agree in various cases.
Anyway, we should welcome the administration's position, but use it to fight for a consistent policy that better protects us all.
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* The other is found in the Copyright and Patent Clause, and it too has often been protected in breach. Copyright protections have often been supplied of late for monetary reasons more so than "to promote the progress of science and useful arts." State constitutions make more use of preambles, but their rare use in the federal Constitution suggests we should take special care to respect their counsel.
This does not mean ignoring the clear meaning of the rest of the provisions, such as the right of the people to keep and bear arms. Nonetheless, "well regulated militia" means something, and those who use the Second Amendment to reject all regulations are just wrong. At any rate, gun ownership was a basic right to many of the people back in 1789: it gives away too much to suggest without the Second Amendment, the right would not exist.
** Recent history suggests they have an uphill battle, even if they didn't live in Texas. Lawsuits against gun distributors in Illinois and New York have failed because they followed state law and did not have a general duty to protect the public. The Illinois Supreme Court also noted the fact that the industry is already heavily regulated, which is applicable here because Texas law itself keeps the mental health records private. The article does not spell out in detail all the claims made, so something might stick, but their chances are somewhat dubious.