Great Editorial!

Discussion in 'In the News' started by Malum Prohibitum, Sep 11, 2007.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member


    If Liberals Aren't Embarrassed, They Should Be

    Friday, Sep 07, 2007


    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.
  2. lsu_nonleg

    lsu_nonleg New Member

    I've drawn that basic correlation time and time again for "public good" lefties. The constant (usually well deserved) complaints of (R) making sure there are no alcohol sales on Sunday, or any good p0rn at a gas station drive me to it. "Well they think they're working for the same public good that you reference in your socialist programs." I then start launching into examples about how their interpretation of the "living Constitution" crap creates exactly the stuff they despise out of the right.

    It's the whole statist/liberty way of looking at things, rather than (R)/(D). Every day I spend in Cambridge, MA, makes me a little bit crazier around this. Mitt Romney a (proper) republican my dog's hairy behind.

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

    My favorite quote from the above.
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

    And I am stealing that one.