A Liberal Case for Gun Rights Helps Sway Judiciary

From The New York Times:

...Several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas, are in broad agreement favoring an individual rights interpretation. Their work has in a remarkably short time upended the conventional understanding of the Second Amendment, and it set the stage for the Parker decision.

The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”

The Second Amendment says, “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 transcriptions of the amendment omit the last comma.)

If only as a matter of consistency, Professor Levinson continued, liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment. And just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.

I've referred to Sandy Levinson's liberal heresies on this issue previously. The Times has given a new prominence to this debate in the aftermath of Virginia Tech and a controversial and divided appellate court decision. Watch for much more on this issue.

I have not studied the constitutional issue sufficiently to have a considered personal view. While I (of course) deplore gun violence as much as the next effete urban Jew, I have come to doubt the efficacy of incremental reform at the state level, and to despair at the non-likelihood of meaningful legislative action (beyond the symbolic) at the federal level. So I am not among those trashing Democrats for not leading much of a charge post Virginia Tech.

Intra-UW exchange on guns and deterrence

"E pur si muove!":

These killers go into schools and playgrounds because they feel safe there. Don't you think it is time to interfere with their government-given sense of security? If an armed professor or student had brought the Blacksburg killer down, it would have saved innocent lives immediately. It would also have given the next insane murderer reason to pause and go elsewhere, or maybe just to either seek help or keep his evil thoughts to himself.

My libertarian UW philosopher colleague Lester Hunt argues that the Virginia Tech massacre calls for more guns (and less regulation), not fewer guns (and more regulation). He is neither the first nor the last to do so. Perhaps if everyone had guns, the killers would be dispatched before their toll got quite so high. But the notion that this would be much of a deterrent frankly eludes me. Very few of these deranged individuals leave the scene alive, dying either by their own hand or in an exchange of fire with police.

UTexas law professor Sandy Levinson has argued that liberals have been badly served (politically) and almost totally ineffective (in affecting access to guns) in their efforts at gun control. (He also thinks there is more to the NRA's Second Amendment arguments than do most fellow liberals.) While I would support restrictive federal legislation (I agree with Sandy that "hit or miss" legislation by individual states is pretty fruitless --except perhaps in reducing accidental and spontaneous familial shootings), I'm not inclined to hold my breath waiting for it, any more than after numerous political assassination attempts and other massacres. Chalk it up to American exceptionalism (or focused insanity) on this topic.

For a view criticizing this position, and Democrats who shy away from gun control, see: Why Democrats dumped gun control | From Salon News:

'The solution isn't to clam up on guns,'... 'but rather to change the terms of the gun debate ... It's time for Democrats -- and progressive Republicans -- to embrace a 'third way' gun policy that treats gun ownership as neither an absolute right nor an absolute wrong and that calls for a balance between gun rights and gun responsibilities. To win elections, Democrats need to reason with gun owners rather than insult them.'

And if that doesn't do it for you, try this:
From Salon.com: By Walter Shapiro
Repeal the Second Amendment

The best way to reduce the odds of another blood bath like the one at Virginia Tech is to amend the Constitution and abolish the right to bear arms.