If Liberals Aren't Embarrassed, They Should Be
Friday, Sep 07, 2007
By A. BARTON HINKLE
TIMES-DISPATCH COLUMNIST
(Richmond, Virginia) "I 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.
http://www.inrich.com/cva/ric/opinion/oped.apx.-content-articles-RTD-2007-09-07-0011.html
Professor Joseph Olson, J.D., LL.M. o- 651-523-2142
Hamline University School of Law f- 651-523-2236
St. Paul, MN 55113-1235 c- 612-865-7956
[EMAIL PROTECTED]
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