Looking to future Supreme Courts
Prof. Robert Cottrol of George Washington Univ. college of law has raised an interesting question in an email, which I'd like to put up for discussion. He prefaced it with a running joke he has -- the problem with advocating the right to arms is the liberals don't like arms and conservatives don't like rights.
" Basically if you look at the last 50 years, if not before, where liberals have seen a right they have moved for vigorous enforcement of that right. Their view has been that nothing can be allowed to stand in the way of protection of an individual right. Convservatives on the other hand have tended to be very timid and tentative in the enforcement of rights and indeed have been generally reluctant to even discuss rights. They have tended to oppose (14th Amendment) incorporation, now only reluctantly accepting it as a fait accompli -- -- and even then probably as a fait accompli that they would overturn if the opportunity presents itself. On the second amendment, their support has quite frankly been rather anemic -- -- it's clear that many support it opportunistically, i.e., because the Democrats over the last ten years have been dumb enough to embrace European style gun control as a core value in a nation where roughly 50% of the population lives in households with firearms. Conservatives have adopted the second amendment because it is good politics, but I don't see, with some exceptions, the kind of passion and commitment that liberals show for rights that they value.
So perhaps the discussion we might have is over the long run will the second amendment be best protected by people who are generally hostile to the right but who have shown a broader commitment to individual rights or by people who are at least nominally in favor of the right but who have shown a rather weak commitment to individual rights generally?"
Let me add to Bob's point a few practical examples. Robert Bork, the ultimate conservative-right nominee for the Court. After his nomination bid ended, his writings made it quite clear that he was strongly anti-Second Amendment and would have been a disaster for the cause. He was not exactly supportive of the concept of rights as a generality (being of the statist branch of conservativism) and held the same view of the Second Amendment.
Conversely, Professors William van Alstyne and Akhil Amar, both very liberal, but both strongly supportive of the right to arms (albeit with limitations), probably because, having concluded that there was a right, they instinctively feel obliged to protect it. And Instapundit has an interesting article on the late Byron "Whizzer" White, a generally liberal Justice, but who had something of a libertarian streak that led him to vote to strike laws that just made no sense. (That is, he bucked the trend that if a law is subjected to "rational basis" analysis it is always upheld -- for him "rational basis" meant something more than "uphold the law if we can dream up any rationale for it that is not completely psychotic").
The ultimate nominee would of course be someone who has already proven to be pro-Second Amendment, someone like Judge Kozinski. But assuming we can't have that, is is better to cheer on someone who is known to be conservative, or perhaps a liberal who is open to being won over?
UPDATE: A rather modest commenter (I'd expect with a good website like that that he'd have been plugging it earlier!) posts a very informative webpage on Virginia legal provisions relating to arms and the militia, colonial VA classified ads (yes, there were such things in the 18th century) relating to arms, contemporary VA law relating to arms, and lots of other related matters. Soon as I get a chance, I'll add it into the sidebar.
ANOTHER: Bob and Clayton Cramer have pointed out the curious split of the Supreme Court in the recent case holding that a foreign conviction is not a felony under the Gun Control Act. Voting for that position was the liberal wing -- Breyer, Stevens, Sutor, Ginsberg. Voting against it, and thus for broader reading of the GCA, were the staunchly pro-2d Amendment Thomas and Scalia.
Digression: I'm working on a book which will suggest that the right-left split in fact represents two loose coalitions of at least five general political groups, whose position is really based more upon emotion or generalized feelings than upon pure political reason.
The problem ultimately is that, given the present administration, the nominees will have to be conservative, but there are at least two branches of that, the statist and the libertarian. Kozinski represents the libertarian branch, but the Administration is more likely to lean toward the statist branch. (This is not to say we can't win over that branch, too -- it was Ashcroft, a strongly statist conservative, who adopted the Second Amendment DoJ position. On the other hand, it's hard to see where that position has changed their litigation tactics any, which would be consistent with recognizing a right but being reluctant to do much about it).