http://tinyurl.com/yrjcb8 If Liberals Aren't Embarrassed, They Should Be Friday, Sep 07, 2007 By A. BARTON HINKLE TIMES-DISPATCH COLUMNIST II 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.