Do Gun Owners Have Any Rights Which Liberals Are Bound to Respect?

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Opponents of gun rights underestimate what's at stake.

July 9, 2014

In Michael Waldman’s lauded new book, The Second Amendment: A Biography, the president of the Brennan Center for Justice at New York University makes a strange error. The first Supreme Court decision to establish the now-ruling interpretation of a constitutional amendment, most would agree, is an important moment in that amendment’s life story, something its biographer should trouble himself to understand.

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Yet in Waldman’s merely two sentences explaining what was at issue in the case that has defined the modern meaning of the Second Amendment, 2008’s District of Columbia v. Heller (I wrote the biography of that case, Gun Control on Trial), he seems strangely ignorant—or wants his readers to stay strangely ignorant—about exactly what law the case challenged.

He writes that the D.C. statutes overturned by plaintiff Dick Heller (and, originally, five other co-plaintiffs booted off the case on narrow procedural grounds) “barred individuals from keeping a loaded handgun at home without a trigger lock.” In a later sentence he again refers merely to “the ban on loaded handguns.”

This is quite off-target. The laws challenged in Heller

did not merely ban the possession of a loaded handgun without a trigger lock. They banned the registration of any handgun that you hadn’t already registered before the restrictive statutes went into effect in 1976. They also banned owning unregistered handguns. That means D.C. law banned handguns entirely for anyone who hadn’t been grandfathered in decades before.

It was long guns, which could still be legally obtained, that had the trigger-lock requirement. In essence, D.C. had banned any usable weapon for self-defense in the home.

This is what the Supreme Court said could not stand based on the Second Amendment. Six years later that’s still as far as the Supreme Court has gone in authoritatively defending citizens’ rights under the Second Amendment.

The style of that mistake is telling about the modern fight over gun rights: Those who advocate gun control prefer to greatly understate the importance of what’s at stake, as Waldman did with

Heller.

Those who believe in Second Amendment rights, in Waldman’s telling, have nothing real at stake. They are just truculent dupes, fooled by NRA propaganda and a sick, scared culture into wanting, for some reason, to own guns.

As good lawyers will, Waldman argues the alternatives. While insisting the “right of the people to keep and bear arms shall not be infringed” is meaningless as constitutional law, he also insists that courts should let democratic bodies do whatever they want no matter what the Constitution says. (It’s unclear whether he thinks this should apply to the First Amendment as well.)

While snarking over the lack of explicit fuss over personal weapon possession (versus questions about state militias) in the original 18th century Second Amendment debate, Waldman argues the alternative against himself inadvertently. He makes it clear, implicitly and even explicitly, that the cultural atmosphere of the Founding era made the idea that government would pass a law like the real law at issue in Heller pretty much unthinkable. It would be no more worth hashing over than, as Waldman himself quotes, Noah Webster’s Founding Father snark about whether they needed to specify in the Constitution that the new government couldn’t “restrain any inhabitant of America from eating and drinking.”

While pretending at various points that the lack of debate over personal possession of weapons is some gotcha revelation about the original intent of the amendment (which he thinks was just to give state militias power to resist federal tyranny, which he hopes all moderns will see as not worth respecting), Waldman himself writes that “to be sure, Americans expected to be able to own a gun, just as they understood they had a right to own property.” Yep, they sure did. Most still do.

One gets the impression Waldman isn’t even trying to convince anyone of anything. He’s just proud of his attitude, which he thinks unassailably righteous: that guns can be very dangerous, and a democratic government should be free to fight that danger by any means necessary.

In this, Waldman was an apt choice to write a popular book meant to define the modern, reasonable, liberal attitude toward gun rights. It wearies and annoys Waldman and his fellows in activism and politics that they even have to think about the Second Amendment. The real message of this book, and of modern gun controllers in general, is that nothing meaningful is at stake on the other side; that any slight chance that some gun restriction might save a life justifies it.

Waldman shows how little respect he has for those who believe in the right to self-defense that he blithely tosses out this sentence: “the notion of personal safety guaranteed only by a gun in every hand, drawn to fend off the marauding Klan, happily is past.”

Replaced by what? Does Waldman not understand that if the right of self-defense means anything in a world in which guns exist and will continue to, that it means the right to own a gun needs to be respected? Does he actually believe that something in the world has changed that means that everyone is now safe from assault and armed self-defense is a relic? Did he read anything about the experiences of the plaintiffs in Heller and in its 2010 follow-up,

McDonald v. Chicago, which extended Second Amendment protections against state and local laws?

The dilemma that Waldman and his fellow gun controllers face isn’t even really about the Second Amendment, as he shows some signs of recognizing. Most challenged gun right restrictions have survived the Heller test in lower courts. The real problem for gun controllers is that democratic public opinion has, for the foreseeable future, turned firmly in the direction of respect for gun rights.

Brian Doherty is a senior editor at Reason magazine and author of Ron Paul’s Revolution: The Man and the Movement He Inspired (Broadside Books).

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  • GregMax|7.9.14 @ 4:51PM|#

    My rights are NOT subject to majority approval and do not flow from government. As long as I do not harm another with my ownership and use of a firearm . . . it is nobody's fucking business.

    It's not that hard. Our rights are listed in the Constitution to PREVENT government infringement.

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  • OldMexican|7.9.14 @ 4:51PM|#

    As good lawyers will, Waldman argues the alternatives. While insisting the “right of the people to keep and bear arms shall not be infringed” is meaningless as constitutional law, he also insists that courts should let democratic bodies do whatever they want no matter what the Constitution says. (It's unclear whether he thinks this should apply to the First Amendment as well.)


    Aw, take a wild guess, Brian. Fairness Doctrine?

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  • |7.9.14 @ 5:05PM|#

    You can't post an article just before PM links and expect anyone to read or comment.

    This is one of my pet peeves though so I can't resist.

    Yes, the gun grabbers deliberately understate what is at stake. Unfortunately the second amendment advocates also understate it, or barely give it lip service.

    The left, the progressives, the fascists, whatever you want to call them....the control freaks, they know they cannot implement their entire agenda without first disarming the American people. Make no mistake about it, they are evil monsters. Being American does not immunize one from being human. Human nature is that a certain percentage of any population is of the sort that builds gulags, ovens, and re-education camps. The kinds of people that conduct pogroms, ethnic cleansing, and orwellian surveillance. These people exist in America.

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  • Cap'n Krunch|7.9.14 @ 5:19PM|#

    Americans fear nothing more than a fellow American with rights. Our constitutionally guaranteed rights, the only ones in the history of the planet, are the only real difference between America and any other nation.

    We've allowed politicians to turn our rights to privileges without even amending the constitution. During prohibition government recognized it required a constitutional amendment to commit to prohibition, today we do it with mere legislation. Today our constitutionally enumerated and guaranteed right to bear arms is subject to local and state jurisdiction, and can be permanently stripped from American citizens by conviction of a state felony, like sodomy in South Carolina or possession of a marijuana seed in almost any state not too many years ago since since it doesn't matter if the felony was committed before federal legislation was passed. The difference between a felony and a misdemeanor in every state is $1, that's the difference between retaining and being permanently stripped of your rights as an American citizen. Our property can be taken and given to another private entity who can then discard it (kelso). Our property can be taken and kept by law enforcement without conviction, or indeed without charges even being preferred. Our political speech can be taxed and licensed. We can be pulled over and searched on our interstates "just in case" we're criminals. We can be forced to provide service to people we don't wish to service.

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