March 20, 2007
The Second Amendment Posted by Fredric Smoler at 09:50 PM EST Benjamin Wittes, who is now at the Brookings Institution, has an interesting piece in the on-line edition of The New Republic about the appeals court panel that recently struck down the gun control law in Washington D.C. Wittes points out that while the judge who wrote the decision, Laurence Silberman, is a noted conservative, some of the newer arguments on Silberman’s side (for example, that in the wake of the post–Civil War constitutional amendments, the Second Amendment creates an individual rather than a collective right) have been made by celebrated liberal professors of constitutional law—for example, by Laurence Tribe, Sanford Levinson, and Akhil Reed Amar. If the Second Amendment is a collective right, it means no more than that your state can maintain a National Guard outfit. If the right is individual, it means no less than that you probably have the right to keep a handgun in your home. Just how far such a right might extend is not clear, but it would clearly extend farther than pleases a gun control advocate. Wittes thinks the new scholarship is more likely to be right than wrong. What makes his piece unusual is that Wittes is in favor of gun control, and his response to the new ruling is to urge the repeal of the Second Amendment. Why does he urge a course of action he admits is almost certainly doomed to near-term failure? Because Wittes thinks it is in the long run destructive to pretend that a portion of the Bill of Rights means whatever he wants it to mean, rather than what competent professional opinion increasingly thinks it does mean. He is very clear that the virtues of an armed citizenry, which he notes are currently on display in Baghdad, and were recently on display in Bosnia, are not indisputable. But the advantages of good faith are not derisory. In his words, “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.” I think this is a brave position, and a remarkably rare one. Of course, there may be good legal reasons to maintain the older view, which is that the Second Amendment now denotes only a collective right. But there is something impressive about evidence and argument triumphing over a desperate hope that the law means what someone very passionately wants it to mean.
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