Monday, 06.30.08
Outgunned
Photo by Flickr User barjack Under a Creative Commons License
The False Promise of Gun Control
March 1994
Second Thoughts on the Second Amendment
March 1996
Wendy Kaminer examines the historical roots of opposition to gun control.
Like a lot of liberals, I'm used to cringing when the Supreme Court does something dramatic. Republican candidates have spent the past couple decades riding Roe v. Wade to victory. Historians haven't tired of debating whether Brown v. Board was a big judicial roadblock on the way to the Civil Rights Act. And when the highest courts in Massachusetts and California backed gay marriage, a familiar collection of lefty pundits fretted that the decisions would set the gay rights movement back by untold years. Our tired old theory is that expanding rights from the bench has a way of screwing things up in the legislature. Call it the liberal argument against a liberal Court: Enjoy those rights in the short term, 'cause you might lose them in the long.
I'm not sure this style of argument is convincing across the board -- or worth using as an argument against the legal reasoning of the actual decisions -- but it seems right often enough to make me worried about the electoral consequences of the Court's decisions. And last week started with all the symptoms of a SCOTUS term that would translate into a November disaster. Habeas rights for Guantanamo detainees? Check. Eighth Amendment protections for convicted child rapists on death row? Check, and cue the apology from Barack Obama, who made sure to emphasize that the "rape of a small child…is a heinous crime," to which the death penalty is "at least potentially applicable."
But then the Court went and struck down the District of Columbia's handgun ban, a decision that, for reasons cultural and chronological, will cast a shadow over every other case this term. And that, I'm convinced, is one of the best gifts the Court has given a democrat since West Coast Hotel. The reasons are simple: D.C. v. Heller takes the Court off the table as an electoral liability, and it takes the National Rifle Association off the table as an electoral threat. The first part of that claim is easy enough: a term that ends with a landmark conservative decision will not be easily spun into an urgent need to remedy what McCain has called federal judges who have "little regard for the authority of the president, the Congress, and the states."
But the second part might require revisiting a few elections that Democrats would rather forget. In 1994, the NRA poured millions into defeating 24 "high priority" congressional Democrats and successfully unseated 19 of them, helping bring Democratic control of Congress to an end. In 2000, the organization spent a record 20 million dollars to knock Al Gore off his plinth, with an outcome that is pretty well known. But the NRA's success in both races depended on the existence of the right legislative bogeyman. In 1994, it was the recently signed Assault Weapons Ban. In 2000, it was Gore's vocal support of child safety locks and mandatory background checks. That might seem like a trifle, but it was enough for NRA President Charlton Heston to describe the 2000 election -- with a great thespian's gift for understatement -- as "the most important since the Civil War."
When I asked Commerce Committee Chair (and former NRA board member) John Dingell about gun control last year, he put it to me this way: "If we learned anything from the 1990s, it is that gun control is a political loser for Democrats." And the strategy since 2000 has been to slowly drag gun control legislation off the national stage. The Democratic Party's 2004 platform endorsed the more conservative individual rights view of the second amendment, and in 2006 the NRA backed a record 58 Democrats for federal office. All of them won.
There is a tradeoff here -- today's Democrats are way gun-friendlier than those of 20 years ago -- but I'm not sure it's a tradeoff worth mourning. The effectiveness of gun laws is one those questions, like the existence of god or the cohesiveness of special relativity, that's not worth debating in 750 words: the relevant questions are cultural as much as empirical. (For a mercifully brief backgrounder on why that's the case I recommend Mark Tushnet's Out of Range.) But however the empirical chips fall, I'm of the opinion that putting a Democrat in the White House is worth permitting guns in a few other houses.
Judicial overreachE.J. Dionne denounces the Court for smashing all precedents and legislating from the bench. |
An examplary decisionRandy Barnett celebrates the triumph of true originalism. |
VictoryMichael Reagan breathes a sigh of relief at the defeat of the "elitist gun-grabber fanatics." |
The swing JusticeLinda Greenhouse describes how the SCOTUS has become the Kennedy Court. |
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To better understand the Second Amendment to the United States Constitution it is helpful to consider how almost every reasonable person would interpret this amendment if it did not involve something which is considered controversial or politically incorrect by some and idolized by others. Arms in the possession of ordinary citizens meet both criteria. Let's, for the sake of argument, suppose that the Second Amendment dealt with books, not arms or weapons, and read like this: "A well educated electorate, being necessary to the maintenance of a free State, the right of the people to own and read books, shall not be infringed." Does anyone really believe that liberals would claim that only people who were eligible to vote should be allowed to buy and read books? Or that a person should have to have voted in the last election before the government would permit him or her to buy a book? Would the importation of books be banned if they did not meet an "educational purpose" test? Would some States limit citizens to buying "one book a month"? Would inflammatory "assault books" be banned in California?
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I have another reason for agreeing with the Supreme Court on this issue.
The most important reason for the Second Amendment is to give Americans the means to forcibly remove a dictatorship -- what the founders would have called a "tyranny."
When I contemplate the Bush administration contemplating the economic and then social chaos that would follow a war with Iran, I hope they remember that there are approximately 200 million guns out here in flyover country.
All revolutions start with small arms, so the high-tech arms available to an administration that takes unconstitutional actions don't matter in the long run.
So, George, declare a state of emergency, an American Reichstag fire, go ahead, roll the dice.
Posted by denis arvay | July 1, 2008 9:23 AM