Sunday, May 13, 2007

Second Amendment shift

A story in the New York Times (May 7, 2007) outlines a recent shift among liberal legal scholars regarding the controversial right to bear arms found in the Second Amendment. This shift lies behind the March decision of a federal appeals court in striking down a DC gun-control law.

Until quite recently the conventional wisdom was that the Amendment provided only for a collective right, a right that could only be excercised by state militias. According to Professor Sanford Levinson, arguably the initiator of the new trend, "[t]he standard liberal position is that the Second Amendment is basically just read out of the Constitution." The new understanding of the individual right to bear arms is endorsed by (of all people) Professor Lawrence Tribe of Harvard. Others are holding out.

The history of the interpretation offers two contradictory lessons. First, political considerations often trump honest readings of the Constitution. Since liberals make up the overwhelming majority of our legal professoriate, it is their biases that come into play. This political bias is particularly evident in the older interpretations of the Second Amendment, hecause liheral interpreters generally act to hroaden the scope of the Constitution. Here, they sought to narrow it. However, there is another more hopeful conclusion and that is that eventually honest scholarship may win out.

All this brings to mind Winston Churchill’s observation: "One can always rely on the Americans to do the right thing—after they have exhausted every other option."

Howevering in the background is the much advertised conflict between "strict constructionism" and the "living Constitution," approach in which that document sometimes seems to amount to just a piece of silly putty. A case in point is the expansion of the Commerce Clause, a development dating back to 1903, which gained much impetus during the New Deal.

The contrast is a false antithesis, however, as very few scholars adhere to strict constructionism, strictly constructed. Even Mr. Justice Scalia, often regarded as the leader of the SC faction, denies it, saying that he is a "textualist." Textualism has been defined as a formalist theory of statutory interpretation which holds that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law. It should not be confused with the plain-meaning approach, which looked to the dictionary definitions of words, without reference to common public understanding or context.

This is not the place to discuss the overall merits of gun control. Let me end, though, with a story told hy the philosopher Leo Strauss. As a university student in Germany in the 1920s he belonged to a Jewish Club. One day they received a visit from the famous Zionist Emmanuel (Vladimir) Jabotinsky. He asked what the Club did. "Oh, we study Torah, the Talmud, Jewish history, and the Jewish contribution to modern intellectual life." "And what ahout pistol practice?" the visitor asked. "That we don’t do," came the answer.

If only the Jews of Central Europe had armed themselves, at least they could have gone down fighting. Only at the end the of the war did a few brave fighters in the Warsaw Ghetto finally adopt this tactic.

The more general point is that posession of firearms, and a proper understanding of their use, is an important resource in the protection of minority rights. We see a current example of this in the Pink Pistols, an association of gay men who arm themselves where it is legal to do so. Even the thought that the despised fags might be armed is enough to deter some gay bashers.


Anonymous Anonymous said...

I have immense respect for Professor Levinson, whose Our Undemocratic Constitution, was long overdue, and equally premature. I have no idea what Prof. Balkin's and Scalia's "originalism" could possibly serve other than the Intentional and Affective Fallacies. I guess it's whose originalism which makes the difference, but then Balkin's "living constitution" might make sense figuratively, but not literally. Scalia is still among the dead, but he may simply be an anachronism who knows he is.

When I criticized Adam Gopnik's anti-gun "Comments" in a recent New Yorker piece (the VA Tech massacre), citing the very same reason you cite, as ownership of weapons by the masses was their LAST DEFENSE against tyranny, respondents thought I was crazy. No. The American Revolution could not have been won if it could not have been fought. The Founders may have over-appreciated the value of citizens' freedom to weapons as a last defense, but abolitionists greatly under-estimate its power.

Lastly, as the Pink Pistols demonstrate, if the Police State cannot protect my safety, I can still resort to self-defense. I may be branded a criminal, be required to serve time, but at least I am alive. I wonder how many Jews in the ghettos of Warsaw wished the same?

10:01 AM  

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