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If Liberals Aren’t Embarrassed, They Should Be

Friday, Sep 07, 2007

By A. BARTON HINKLE
TIMES-DISPATCH COLUMNIST

II cannot help but suspect,” wrote Sanford Levinson in 1989, “that
the best explanation for the absence of the Second Amendment from the
legal consciousness of the elite bar . . . is derived from a mixture
of sheer opposition to the idea of private ownership of guns and the
perhaps subconscious fear that altogether plausible, perhaps even
‘winning,’ interpretations of the Second Amendment would present real
hurdles to those of us supporting prohibitory regulation.” Levinson,
a law professor, published those thoughts in the Yale Law Journal.
The title of his essay — “The Embarrassing Second Amendment” –
spoke to the cognitive dissonance that rang so loudly in the legal
academy’s pained silence on the subject of guns.

A recent ruling in the Court of Appeals for the District of Columbia
Circuit, striking down D.C.’s gun ban, made clear why liberals have
cause for embarrassment. It covers much of the same ground Levinson’s
essay did, and reads like a Second Amendment primer.

The District has now asked the U.S. Supreme Court to reverse that
decision. The District’s petition is, in the words of The Washington
Post, “filled with statistics about gun violence and the harm caused
to children, women, and police officers.” In other words, it is
filled with irrelevancies. One might as well argue that the First
Amendment does not protect free speech by citing all the harm caused
by erroneous news reports. One person’s abuse of a right does not
negate the right for others.

The 2-1 majority in Parker v. District of Columbia rejects the
interpretation of the Second Amendment as upholding only a collective
right to bear arms. Now it is true, as The Post editorializes, that
“the D.C. Circuit’s conclusion . . . is at odds with nine of the
federal appeals courts to have formally weighed in on the question.”
But that standard interpretation is itself at odds with four other of
the first 10 amendments to the Constitution.

TO MAINTAIN that the Second Amendment does not guarantee an
individual right, one has to assume that the Founders, in writing a
Bill of Rights meant to safeguard individuals from government power,
used “the people” in the Second Amendment to mean government power –
state militias — and exclude individuals, yet they meant “the
people” to mean individuals in the First, Fourth, and Ninth
Amendments — as well as the Tenth, which specifically distinguishes
between “the states” and “the people.”

True also, the awkward wording of the Second Amendment has confused a
great many: “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.” Some read the opening clause as
restricting the scope of the rest of the sentence. But consider a
similar sentence: “Because a well-fed army is necessary, the right of
the people to grow and eat crops shall not be infringed.” It would be
silly to read that sentence as meaning only the army can grow and eat
crops, or that all crops must be turned over to the army for
consumption. (“Well-regulated” had a different meaning in Colonial
times than it does in the modern regulatory era, but space here is
short, so we’ll get into that some other time.)

Gun-control advocates also fondly cite the 1939 case U.S. v. Miller,
in which the Supreme Court upheld the conviction of Jack Miller, who
failed to register a sawed-off shotgun. This argument for the
sanctity of precedent is not made gracefully by liberals who
rightfully cheered the 2003 bedroom-privacy decision in Lawrence v.
Texas that overturned the settled precedent of Bowers v. Hardwick, or
the even more socially disruptive precedent-buster of Brown v. Board
of Education in 1954.

WHAT’S MORE, in citing Miller gun-control advocates get it
hilariously wrong. The Supreme Court’s unanimous decision was
written, as Levinson notes, by “the arch-conservative Justice [James
Clark] McReynolds,” and it turned on whether a sawed-off shotgun had
a military use. As Levinson put it in 1989: “Ironically, Miller can
be read to support some of the most extreme anti-gun control
arguments, e.g., that the individual citizen has a right to keep and
bear bazookas, rocket launchers, and other armaments that are clearly
relevant to modern warfare, including, of course, assault weapons.”

And so gun-control advocates are forced to the position they now
take, which is that the right to own a gun should not exist because
it carries too high a social cost. The same argument, lamentably, is
made by conservatives about other civil liberties — such as Miranda
rights and the Fourth Amendment’s guarantee against unreasonable
search and seizure: Society would be much better off if criminal
defendants had far fewer rights, and courts did not throw out
convictions on “technicalities.” Liberals who disdain gun rights on
cost-benefit grounds put themselves in the same unprincipled camp –
a fact they ought to find most embarrassing.

“My thoughts do not aim for your assent — just place them alongside
your own reflections for a while.” –Robert Nozick.

The Second Amendment IS Homeland Security !