The individual right to keep and bear arms

Mike Cox, the attorney general of Michigan, has a column in the Wall Street Journal, explaining the argument that the Second Amendment applies to an individual right rather than a collective right.

To analyze what "the right of the people" means, look elsewhere within the Bill of Rights for guidance. The First Amendment speaks of "the right of the people peaceably to assemble . . ." No one seriously argues that the right to assemble or associate with your fellow citizens is predicated on the number of citizens or the assent of a government. It is an individual right.
The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ." The "people" here does not refer to a collectivity, either.

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, "the people" are separate from "the states"; thus, the Second Amendment must be about more than simply a "state" militia when it uses the term "the people."

Consider the grammar. The Second Amendment is about the right to "keep and bear arms." Before the conjunction "and" there is a right to "keep," meaning to possess. This word would be superfluous if the Second Amendment were only about bearing arms as part of the state militia. Reading these words to restrict the right to possess arms strains common rules of composition.

I find these and the rest of the arguments convincing as to what the Founders meant in the Second Amendment. However, I would also believe that this right is not absolute just like freedom of speech is not absolute and the state can regulate speech with libel, obscenity, and commercial accuracy laws. For example, your freedom of speech doesn't give you the right to stand up at the local high school's strings concert and scream obscenities at the conductor. Thus, I don't see it as a violation of the right to keep and bear arms to have restrictions on automatic weapons or background checks or regulations that would have kept the Virginia Tech killer from having guns once he'd been found to be unstable. It has always seemed to me that there is a compromise out there that could respect Constitutional rights and still have common sense restrictions. I'm keeping my fingers crossed that the Supreme Court can find that line between government restrictions that go too far as the D.C. ordinance does and establishing an absolutist position that would bar any restriction at all on any type of gun ownership.

I realize that this opens up all sorts of slippery slope arguments. But we can't base our system on the prospect that one crack in the existence of an absolute right means that the whole structure of our rights would collapse. We don't say that a person can't sue a company for false charges of the efficacy of a medical treatment because we fear that that will put us on the road to ending freedom of speech. I guess that scholars might argue that once Oliver Wendell Holmes opened the door to limits on freedom of speech with his crying fire in the middle of a crowded theater metaphor that this country has led to limitations on freedom of speech in a group running an ad against a political candidate they don't like. But the mistake wasn't in Holmes original point that freedom of speech allowed no limitations; it was in the following cases that went to far in restricting speech, particularly the speech that is most important to protect - political speech. We make distinctions all the time in law without worrying about a slippery slope. Throwing a snowball isn't treated the same as throwing a hand grenade.