Friday, October 11, 2013

Guest Post: Liberals & The Second Amendment by Zee

Introduction by Fred Drumlevitch

I am pleased to have the opportunity to run my first guest post, a fine piece by "Zee" on the subject of the Second Amendment, cross-posted here with permission from both Zee and Sardonicky's Karen Garcia, who served as editor on Zee's post.

That I support it undoubtedly comes as no surprise to Sardonicky regulars given my own past comments about such matters on that forum. As I've previously said there, my own opinion derives in part from my background, which includes rural connections via one side of my ancestry, my current residence in the Southwest, the long-ago murder of someone I knew who was unable to defend herself from an infamous serial killer, and the deaths of many distant relatives in the Holocaust.

But my opinion derives from more than the personal.

First of all, though my politics are unabashedly well to the left of the current so-called center, I've long thought that the often-substantial leftist/liberal opposition to private firearm ownership has been a grave strategic mistake, alienating large numbers of lower-middle-class working Americans — who should, more often than not, identify with progressive economic positions, but who have been peeled away by Republicans based on hot-button social issues, one of the most inflammatory being the prospect of highly-restrictive gun control. The Democrats (and progressives too, whether formally Democratic or not) have often shot themselves in the foot (or a worse place) so to speak, with gun control pronouncements that have fueled such fears. Even when leftist or liberal politicians have made a deliberate show of being at ease with firearms, it has often come off as insincere. And when they have made statements supporting gun rights, those statements have often focused on hunting, not the issues that were more clearly the inspiration for the Second Amendment.

Which brings us to perhaps the most important point of my introduction. The 1960s and early '70s resonated with chants of "power to the people!", but matters have gone very much downhill since then. We have witnessed a long-term erosion of fundamental civil liberties that we thought were guaranteed by the Constitution, the Bill of Rights, and subsequent Amendments. Meanwhile, the power of government has increased exponentially — but in all the wrong ways, in all the wrong places. Serious regulation and criminal penalties for the banksters who brought our economy to its knees, the frackers and industrial waste disposers who inject toxic liquids into the ground, or the corporate bosses who endanger workers? Dream on! (Oh, an occasional prosecution might occur in the most egregious cases, but the deregulation-of-corporate-activity trend is clear). Instead, in recent decades government has come to view the people as threat. National, state, and local governments have all overtly militarized, while at the same time building a massive (at least at the national level) covert surveillance apparatus that vastly exceeds that of the Communist East German Stasi. Fundamental civil liberties such as those supposedly guaranteed by the Constitution's Fourth Amendment have disappeared via secret Presidential directives or ill-conceived legislation. Militarization of the police, marginalization and sometimes even violent dispersal of peaceful protest, a vast expansion of no-knock warrants, huge prison expenditures and a per-capita prison population that is the highest in the world, and ubiquitous governmental spying on the communications, associations, and geolocation data of law-abiding citizens — simply put, we are building an infrastructure for tyranny.

The founding fathers of this nation understood the value — and interdependence — of our fundamental individual rights. Certainly, the entire Bill of Rights is important. But paradoxically — I say "paradoxically", because while people of a rational, moral, progressive bent certainly desire an end to gun violence, and may fervently wish that firearms had no presence in the civil affairs of man — we must consider that given current conditions and the deliberate violation by government of our other supposedly-guaranteed liberties, the widespread distribution of private firearms enabled by the Second Amendment may well be the most important still-operational deterrent to the transformation of our nation into a fully totalitarian one.

Lest the reader in some way misinterpret the nature of my points above, I'd like to state most emphatically that I am NOT seeking to advance insurrectionist rationalizations. No one in their right mind should romanticize violent rebellion. My main point is a simple one, that widespread private firearms ownership has a significant deterrence value against the conversion of our expanding current softer-and-gentler "inverted totalitarianism" (sensu Sheldon Wolin) into a more brutal traditional one.

Deterrence. I chose that word carefully, and I mean precisely that. And I believe it to be an accurate assessment of the situation.

In his guest post, Zee makes a thoughtful, well-documented case for the Second Amendment as an individual right — and it's a case based on arguments and sources that, for the most part, cannot be labeled as right-wing.

Liberal Professors and Historians of Constitutional Law Who Hold Surprising Views on the Second Amendment
guest post by Zee
The American Civil Liberties Union (ACLU), has long generalized that the Bill of Rights — or, at least, the first Eight Amendments — protect individual rights, an assertion with which I agree.
Yet the ACLU — along with perhaps most American liberals — has decided to assign a special, “collective rights” interpretation to the Second Amendment (hereafter, SA), directly contradicting its/their own general assertions. This needless torture of plain language is done, IMHO, strictly for political purposes, and is damaging to the entire Bill of Rights.

Alan Dershowitz, liberal professor of law at Harvard Univ. and an expert on constitutional law and civil rights, has recognized the serious danger lurking behind this interpretation of the SA. From Wikipedia (and note that all bold emphases that follow are mine):
“Dershowitz is strongly opposed to firearms ownership and the [SA], and supports repealing the amendment, but he vigorously opposes using the judicial system to read it out of the Constitution because it would open the way for further revisions to the Bill of Rights and the Constitution by the courts. 'Foolish liberals who are trying to read the [SA] out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.'
But Dershowitz is by no means the most respected professor or historian of constitutional law who has decided that the SA protects an individual right to own firearms.

Let's start with the person who is probably the biggest “intellectual constitutional gun” on the field, and who has undergone pretty much a complete reversal from his earlier position in support of the “collective model,” liberal Harvard law professor and constitutional law expert, Laurence Tribe: 
“Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the [SA] is a populist/republican/federalism one. Its central object is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of the states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by sec. 1 of the Fourteenth Amendment against state or local government action.” -- Laurence H. Tribe, “American Constitutional Law (3rd edition),” 901-02 n.221, Foundation Press, 2000.
What a complete reversal from his position on the SA in the two earlier editions of his highly-respected textbook!

Note that Tribe's year-2000 textbook predates the Supreme Court (SCOTUS) cases Heller v. DC and McDonald v. Chicago, of which the latter's decision “incorporated” the SA under the Fourteenth Amendment.

Tribe acknowledged his epiphany in a 2007 NYT article regarding an appeals court case, Parker v. DC, which was later consolidated into Heller v. DC when it arrived at SCOTUS:
“Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the [SA] protected an individual right. 'My conclusion came as something of a surprise to me, and an unwelcome surprise,' Professor Tribe said. 'I have always supported as a matter of policy very comprehensive gun control.'”
Earlier, in a 1999 USA Today article that followed closely on the heels of the release of his 3rd edition, Tribe said:
“I've gotten an avalanche of angry mail from apparent liberals who said, 'How could you?...But as someone who takes the Constitution seriously, I thought I had a responsibility to see what the [SA] says, and how it fits.”
(So, after two editions of his textbook, he finally gets around to seeing what the SA really says? Well, better late than never.)

And now that SCOTUS has incorporated the SA just as Prof. Tribe thought might happen, that protection — “admittedly of uncertain scope” — extends right down to the individual.

Another respected constitutional law professor, Akhil Reed Amar (Yale Univ.) has reached the same conclusion, both in his book, The Bill of Rights, and in several related newspaper, magazine and webzine articles. He has been described as a “liberal” in a NYT review of his most recent book.

From The Bill of Rights:
What's more, the 'militia,' as used in the amendment and in clause 16 [of Article I, Sec. 8 of the U.S. Constitution] had a very different meaning two hundred years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as the 'state militia,' but two hundred years ago, any band of paid, semiprofessional, part-time volunteers, like today's guard, would have been called a 'select corps' or 'select militia' — and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, 'the militia' referred to all citizens capable of bearing arms. The seeming tension between the dependent and the main clauses of the [SA] thus evaporates on closer inspection — the 'militia' is identical to 'the people' in the core sense described above. Indeed, the version of the amendment that initially passed in the House, only to be stylistically shortened in the Senate, explicitly defined the militia as 'composed of the body of the People.' This is clearly the sense in which 'the militia' is used in clause 16 and throughout 'The Federalist,' in keeping with standard usage confirmed by contemporaneous dictionaries, legal and otherwise. As Tenche Coxe wrote in a 1788 Pennsylvania essay, 'Who are the militia? Are they not ourselves?'”
Amar goes on to spike the notion that either the term “well-regulated” in the SA, or Article I, Sec. 8, clause 16 of the U.S. Constitution somehow trumps an individual right:
“First, it appears that the adjective 'well-regulated' did not imply broad state authority to disarm the general militia; indeed, its use in various state constitutional antecedents of the [SA] suggests just the opposite is true. Second, and connected, the notion that congressional power in clause 16 to 'organiz[e]' and 'disciplin[e]' the general militia logically implied congressional power to disarm the militia entirely is the very heresy that the [SA] was designed to deny. How, then, can we use the amendment's language to embrace the same heresy vis-a-vis state regulations? What's more, as shall become evident in Part Two [of Amar's book], the right to keep and bear arms was plainly viewed by the framers of the Fourteenth Amendment as a 'privilege of national citizenship' that henceforth would apply, and perhaps should always have applied, against states.”
It seems clear that Prof. Amar has come to the same conclusion as Prof. Tribe, again, well before Heller v. DC. And he similarly anticipated the extension of that protection right down to the individual based on the Fourteenth Amendment, which we now know has happened. So again, here's another highly respected, liberal constitutional scholar who has determined that the SA protects an individual right to own firearms.

However, Amar's position on the SA and “reasonable” gun control is also informed by the Ninth and Tenth Amendments, as well as by simply examining customary firearms ownership, usage and laws in America since colonial days. From an article co-authored with Tribe,
“The fact is, almost none of the proposed state or Federal weapons regulations appears to come close to offending the [SA's] core right to self-protection. [Excluding, of course, the near-absolute bans of DC and the City of Chicago, both of which SCOTUS found to be unconstitutional!] The right to bear arms is certainly subject to reasonable regulation in the interest of public safety.”
I might argue at length with Profs. Tribe and Amar as to what is “reasonable gun control,” but I don't deny their basic premise: “Laws that ban certain types of weapons, that require safety devices on others, and that otherwise impose strict controls on guns, can pass Constitutional scrutiny.”

Another liberal law professor — not of constitutional law — who has been quoted favorably in this forum on other matters, Jonathan Turley, published in USA Today in 2007 an article entitled A Liberal's Lament: The NRA Might Be Right After All.
“Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the [SA] and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias...Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.”
“Yet, if true, the [SA] would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the [SA] and, since the District [of Columbia] and others believe governments can ban guns entirely, the [SA] would be read out of existence”
More important, the mere reference to a purpose of the [SA] does not alter the fact than an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press...”
“Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right, consistent with the plain meaning of the amendment.
“None of this is easy for someone raised to believe that the [SA] was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit's the really hard part...the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers, and while we might not celebrate it, it is time that we recognize it.”
Leonard W. Levy was not a professor of law, but he was a respected historian regarding the Bill of Rights. He won the 1968 Pulitzer Prize for History with his book, “Origins of the Fifth Amendment.” In an obituary, he was described as a “New Deal liberal.”
From his book, Origins of the Bill of Rights:
Believing that the [SA]does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right. The military connotation of bearing arms does not necessarily determine the meaning of a right to bear arms. If all it meant was the right to be a soldier or serve in the military, whether in the militia or the army, it would hardly be a cherished right and would never have reached constitutional status...”
“The right to bear arms is by no means unlimited. Public regulation may specify the kinds of weapons that are lawful and the conditions under which those weapons may be kept; but no regulation may subvert the right itself. The very language of the amendment is evidence that the right is a personal one, altogether separate from the maintenance of a militia. Militias were possible only because the people were armed and possessed the right to be armed. The right does not depend on whether militias exist.
So there you have it. Five highly respected, liberal professors — three, of constitutional law, the fourth a professor of law, and the fifth a distinguished historian of the Bill of Rights — have reached the same conclusion as have I and many others, viz., that the SA protects an individual right to own guns for personal protection independent of “enrollment” in any militia; a right that may neither be completely prohibited, nor made impossible to exercise — by, for example, complete bans on firearms ownership, imposition of exorbitant taxes on firearms and ammunition, expensive liability insurance requirements, or burdensome “fees” for background checks, etc. — at any level of government.

This interpretation also brings the entire Bill of Rights into conformance with the ACLU's general assertion that it does indeed protect individual rights. Which is as it should be.  

introduction copyright Fred Drumlevitch
guest post copyright by its author