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An honest approach
From the New Republic (registration required) comes an honest approach: the author agrees that the historical/legal evidence all points to an individual right to arms, notes that his values disagree with this, and so calls for a repeal of it by democratic processes. Quite a bit more honest than the usual anti-individual right argument. Key portions of the article are in extended remarks.
"But, critically, judges shouldn't be in charge of stripping disfavored rights from the Constitution. If the courts can simply make gun rights disappear, what happens when the First Amendment becomes embarrassing or inconvenient? It corrodes the very idea of a written Constitution when the document means, in practice, the opposite of what its text says. ... It's true that repealing the Second Amendment is politically impossible right now; that doesn't bother me. It should be hard to take away a fundamental right. But that doesn't make it less wrong to ask [Judge] Silberman and his colleagues to relieve the political culture of the obligation of trying."
Ditch the Second Amendment.
Gun Shy
by Benjamin Wittes
The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.'s ultra-strict gun-control law of storming "blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety." My former colleagues at the Washington Post described the decision as a "radical ruling" that "will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder."
It's not hard to see where the anger comes from. The two-to-one decision by the famously conservative Judge Laurence Silberman is, indeed, radical. Consider the following:
• The "central object" of the Second Amendment "is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. ... [T]he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification. ... That assurance in turn is provided through recognizing a right ... on the part of individuals to possess and use firearms in defense of themselves and their homes."
• "For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy."
• While at the Founding, the Second Amendment may have embodied a "collective" right, after the Civil War amendments, the constitutional landscape changed dramatically, and "gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding 'privileges' of discrete 'citizens' to individual self-protection."
Radical stuff, indeed. But there's a big problem with blasting Silberman for entertaining the notion that the people's right to "keep and bear arms" may actually include an individual right to, well, keep or bear a gun in the District of Columbia: None of these words actually come from his opinion. All, in fact, were written by esteemed liberal law professors.
The first is from Laurence Tribe's famed treatise on the Constitution, the latest version of which Tribe altered in recognition of the growing power of the individual-rights view of the amendment--a view he had long rejected. The second is by Sanford Levinson, who--before he stopped believing in the Constitution altogether--wrote an illuminating law review article called "the embarrassing second amendment." The final quotation is from Akhil Reed Amar's ambitious history, The Bill of Rights. One can still muster strong arguments in favor of a collective-rights conception of the Second Amendment, the view that has prevailed in most other circuits; and the individual-rights view does not necessarily doom all gun control (though it probably does doom the most sweeping bans). But the simple truth is that the individual-rights view is in intellectual ascendancy, and not just among gun-loving wing nuts. If Silberman is a radical with blithe disregard for public safety, he is in exceptionally strong company.
It's time for gun-control supporters to come to grips with the fact that the amendment actually means something in contemporary society. For which reason, I hereby advance a modest proposal: Let's repeal the damned thing.
This seems to me the right response to the amendment no matter which broad historical interpretation is correct. If, in fact, the amendment embodies only a collective right and the right to keep guns is indelibly linked to membership in the old militias--institutions that no longer exist--the amendment is already a dead letter. Repealing it would be then a simple matter of constitutional hygiene, the removal of a constitutional provision that has no function now nor could in the future but that, by its language, encourages the belief in an armed citizenry that I, for one, do not wish to see.
If, on the other hand, the amendment really does as Silberman, Tribe, Amar, and Levinson essentially claim--and I suspect they are all more right than wrong--then it embodies values in which I don't believe. I grew up obsessively shooting .22 caliber target rifles at summer camp in the Adirondacks. I like guns well enough in rural areas. I don't like them in cities. I don't believe that the Constitution ought to prevent my hometown of Washington, D.C.--which has a serious problem with gun violence--from making a profoundly different judgment about how available handguns should be than the New York legislature would make for the hamlet near my old camp. Guns, in other words, present a legitimate policy question on which different jurisdictions should take very different approaches--including, in some areas, outright bans.
There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets,.... On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. ... After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
But, critically, judges shouldn't be in charge of stripping disfavored rights from the Constitution. If the courts can simply make gun rights disappear, what happens when the First Amendment becomes embarrassing or inconvenient? It corrodes the very idea of a written Constitution when the document means, in practice, the opposite of what its text says. The great beauty of the Constitution is that, unlike, say, the treaties that form the European Union, you can actually read it. You can see how its language embodies principles that still animate the day-to-day operation of American political life. When that is no longer the case, American democracy suffers; it gets unmoored from its source of legitimacy.
If we disagree with the Founders--and as to guns, I very much disagree with whatever they might have meant--we should say so and invoke that provision of the Constitution they specifically designed so that we could give voice to our disagreements with them. The Bill of Rights is sacred, but it is not so sacred that we should prefer lying to ourselves about what it actually says, rather than changing it as our needs shift.
It's true that repealing the Second Amendment is politically impossible right now; that doesn't bother me. It should be hard to take away a fundamental right. But that doesn't make it less wrong to ask Silberman and his colleagues to relieve the political culture of the obligation of trying.
It is certainly easier to pretend that's not what we're doing--that the Founders never created the right, and that our values and theirs (except, of course, concerning slavery, women, Native Americans, and few other odds and ends) are more or less congruent. It's a lot easier to pretend that Silberman--but not, of course, Tribe, Amar, or Levinson--is a dangerous radical. But it's not healthy. We should seek gun control and a Constitution that means something.
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The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed--where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
I wish Mr. Wittes would give that the consideration it deserves.
I find it sad that anyone would willingly entertain the wholesale elimination of a fundamental right.
The big whine is that in the urban areas guns are misused. In less urban areas you misuse a gun and your parents neighbors or the law deals with you. Strict enforcement in urban areas by the named enforcers would go a long way to solving the misuse of guns there.
tom gunn
The urban-vs-rural argument is preposterous: can anyone name a single reasonable advocate for abolishing discharge of firearms restrictions in urban areas? I thought not.
But other than that, what difference could population density reasonably make? Surely nothing in regard the need for self-defense. And if the mere ownership of firearms causes problems in DC or Boston, why doesn't it cause at least a proportional problem in Virginia or Vermont?
Hi Kirk,
I advocate abolishing the "discharge of firearms" restriction in Columbus, OH. For one, the current law includes air guns in the definition of "firearm" (it is overly broad).
The main reason I oppose the restriction is that simply firing a projectile from a firearm in an urban area should not be a crime unless the shooter is careless and this carelessness results in a victim.
All of the problems associated with discharging a firearm neglegently within city limits in terms of personal injury, property damage, or even the nuiscance of the noise are already sufficiently covered by existing legislation that allows people to be charged and punished in the event of misuse of a firearm resulting in damages.
"... simply firing a projectile from a firearm in an urban area should not be a crime unless the shooter is careless and this carelessness results in a victim." I'm one of those people who oppose even "shall issue" carry licenses on the basis that one shouldn't be required to obtain a license or permit in order to exercise a fundamental right. Having said that, I'd strongly disagree with the above position. My family and I shouldn't have to sit around waiting until some yahoo actually manages to hit somebody before asking the police to take some action, any more than drunk driving should be allowed until the drunk actually injures someone or causes significant property damage.
I'd sure like to see someone attempt to repeal an amendment in the Bill of Rights. Might as well burn the Declaration of Independence while they are at it.
Besides which, even without the 2nd Amendment we still have the right.
"My family and I shouldn't have to sit around waiting until some yahoo actually manages to hit somebody before asking the police to take some action, any more than drunk driving should be allowed until the drunk actually injures someone or causes significant property damage."
So, what you are saying is that you are in favor of pre-emptive enforcement? You are in favor of arresting and locking up somebody because of something they *could* do? You have no proof that a discharge or a drunk driver would cause any harm, but you are ready to stop them from acting because you DON'T trust them to behave in a manner THAT YOU approve of. Common and classic elitism, that is what you are talking about.
Crime should reflect an infringment, particularly an unwanted infringment, on your rights by a 2nd party. It should not simply involve an action you happen to dislike. If someone is drunk and drives as well as you do sober, have they somehow infringed on your rights? If someone discharges a firearm and it doesn't hurt anyone, have they done anything wrong? No, you just happen to not trust those people and want to stop them from acting. You actually want to infringe their rights before they have a chance to exercise them!
If you want to prevent murder, outlaw all objects capable of murder. That way you don't have to sit at home waiting for someone to come murder you. Same principle of logic you are using and equally misguided in my opinion. Living in a free society is a risky business and it requires you to accept that people are going to use their freedom to commit poor choices but you have to respect that everyone gets to chose. Brings out the scared authority figure in everyone, some more than others.
DEAVIS writes:
"Living in a free society is a risky business and it requires you to accept that people are going to use their freedom to commit poor choices but you have to respect that everyone gets to chose."
Harrumph!!
MuzzleBlast
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This reminds me of Rep. Major Owens' attempt in the 103rd Congress to file an amendment repealing the 2A (H.J.Res 81). Filed 27 Jan 93 and with two Cong Record inserts in April 1993, all but forgotten fourteen long years ago.
Supposedly Owens had to refile the bill; he originally wanted to repeal the "Fifth" Amendment, but House Leg Counsel corrected it in the final bill filing.
I say let them try. Doing this would kill off the funding and remaining support of the anti's. They don't have the support to do something ludicrous like this today; what makes anyone think there would suddenly be a groundswell of public opinion in 2007-09 to repeal one of our rights?
I believe Ken is the yahoo. Why should my family have to sit around and wait for someone to figure out what we might do and punish for that. Instead of waiting to see if we misbehave.
Ken sounds like someone who might illegally detain another, falsely imprison another so his family doesn't have to "sit around and wait for some yahoo......etc."
So, I believe we should send Ken to prison for the potential to kidnap. No point in waiting until he actually does it, according to him.
Quit being stupid. In a free society potential behavior cannot be punished. To the extent that it is, is the measure of the absence of liberty.
Unacceptable behavior proscribed by law, may be punished. But in a free society what one might, maybe, could, possibly, perhaps, be able to do is not grounds for punishment or truncation of rights. Only after the unacceptable behavior has occurred can a free society protect itself by punishing the actor, both as retribution and deterrence. Any punishment of restriction prior is a veto of liberty.
Liberty is risky. We must rely on the good natures of our fellow citizens to a large extent. Though risky, it has proven throughout history to be much safer than entrusting ourselves to the good natures of governments.
Those unwilling to risk liberty can always find a master. If that be their desire, I will not strive to prevent such, so long as they seek subservience and servitude on a personal level. They are not empowered to seek either, nor a master, for me. When they venture to do so they have become my enemy. An enemy who will not be tolerated. An enemy who will be counted among the forces of evil by free men everywhere.
Straightarrow
There is the modifier of 'imminence'. Up until I actually detonate it I've done no real harm by having a bomb.
But I think it's reasonable to act when I take my matches out rather than waiting until I light the fuse.
I think firearms discharge laws are a poor example of things everyone can agree on. One one hand, some idiots that used to live next door to my parents would shoot guns up in the air around new years eve, the fourth of july, and so on. This is in a fairly dense suburban area, and we did not feel they were being responsible, and my parents called the sheriffs dept about it. On the other hand, discharge bans in city limits seem to be frequently used to shut down shooting ranges (indoor and outdoor), and might be used as a way for an unfriendly prosecutor to punish people who use a gun to defend themselves in an emergency.
Firing at other peeps property, firing up in the air, or otherwise using a firearm with reckless disregard for the potential consequences and common gun safety rules, is certainly offensive to anyone in the community, including responsible gun owners. But an outright ban on the use of firearms, responsible or otherwise, infringes on the rights of those who would use them responsibly IMO.
I AM A CARD CARRING MEMBER ON THE N.R.A. AS WELL AS A HOLDER OF A CONCIELD WEPONS PERMIT, AND IM DAMN PROUD OF AND BEING AN AMERICAN.
I SERVED IN THE UNITED STATES ARMY,AND SERVED MY COUNTRY WELL, AND WITH HONOR, AND PROUD THAT I DID. I HAVE A GOOD STANDING IN MY COMMUNITY.I WORK HARD TO PROVIDE FOR MY FAMILY SO THEY CAN HAVE A FEW NICE THINGS. LAST NIGHT I WAS ARRESTED FOR FIRING A .380 AUTO
HANDGUN INTO THE GROUND,OF MY BACK YARD. SO I COULD SHOW A FRIEND WHAT THE GUN SOUNDED LIKE. I'VE NEVER BEEN ARRESTED BEFORE, I DID'NT CAUSE ANYONE ANY HARM AND THE NOISE WAS AS LOUD AS A SEMI-LARGE FIRECRACKER,I LIVE IN A SMALL FARM TOWN. I CAN DRIVE A MILE ANY WAY AND I WILL BE OUT OF THE CITY LIMITS.I WAS ARRESTED AND TAKEN TO JAIL IN HAND CUFFS IN FRONT OF MY SON, MY WIFE,AND MY FRIENDS.NO HARM, NO FOUL ,JUST ME FACING A FELONY NOW. IS THIS NOW WHAT WE ARE CALLING AMERICA, THE COUNTRY I SERVED FOR AND SACRIFICED FOR, THE LAND OF THE FREE?
I find it sad that it's a surprise when someone shows intellectual honesty as Benjamin Wittes does here, or Laurence Tribe did in the 3rd Edition of American Constitutional Law.
It says something about our culture that isn't good.