The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.'s ultra-strict gun-control law of storming "blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety." My former colleagues at the Washington Post described the decision as a "radical ruling" that "will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder."
It's not hard to see where the anger comes from. The two-to-one decision by the famously conservative Judge Laurence Silberman is, indeed, radical. Consider the following:
The "central object" of the Second Amendment "is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. ... [T]he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification. ... That assurance in turn is provided through recognizing a right ... on the part of individuals to possess and use firearms in defense of themselves and their homes."
"For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy."
While at the Founding, the Second Amendment may have embodied a "collective" right, after the Civil War amendments, the constitutional landscape changed dramatically, and "gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding 'privileges' of discrete 'citizens' to individual self-protection."
Radical stuff, indeed. But there's a big problem with blasting Silberman for entertaining the notion that the people's right to "keep and bear arms" may actually include an individual right to, well, keep or bear a gun in the District of Columbia: None of these words actually come from his opinion. All, in fact, were written by esteemed liberal law professors.
The first is from Laurence Tribe's famed treatise on the Constitution, the latest version of which Tribe altered in recognition of the growing power of the individual-rights view of the amendment--a view he had long rejected. The second is by Sanford Levinson, who--before he stopped believing in the Constitution altogether--wrote an illuminating law review article called "the embarrassing second amendment." The final quotation is from Akhil Reed Amar's ambitious history, The Bill of Rights. One can still muster strong arguments in favor of a collective-rights conception of the Second Amendment, the view that has prevailed in most other circuits; and the individual-rights view does not necessarily doom all gun control (though it probably does doom the most sweeping bans). But the simple truth is that the individual-rights view is in intellectual ascendancy, and not just among gun-loving wing nuts. If Silberman is a radical with blithe disregard for public safety, he is in exceptionally strong company.
It's time for gun-control supporters to come to grips with the fact that the amendment actually means something in contemporary society. For which reason, I hereby advance a modest proposal: Let's repeal the damned thing.
This seems to me the right response to the amendment no matter which broad historical interpretation is correct. If, in fact, the amendment embodies only a collective right and the right to keep guns is indelibly linked to membership in the old militias--institutions that no longer exist--the amendment is already a dead letter. Repealing it would be then a simple matter of constitutional hygiene, the removal of a constitutional provision that has no function now nor could in the future but that, by its language, encourages the belief in an armed citizenry that I, for one, do not wish to see.
If, on the other hand, the amendment really does as Silberman, Tribe, Amar, and Levinson essentially claim--and I suspect they are all more right than wrong--then it embodies values in which I don't believe. I grew up obsessively shooting .22 caliber target rifles at summer camp in the Adirondacks. I like guns well enough in rural areas. I don't like them in cities. I don't believe that the Constitution ought to prevent my hometown of Washington, D.C.--which has a serious problem with gun violence--from making a profoundly different judgment about how available handguns should be than the New York legislature would make for the hamlet near my old camp. Guns, in other words, present a legitimate policy question on which different jurisdictions should take very different approaches--including, in some areas, outright bans.
There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets, which could never have yielded the kind of street violence America sees routinely now. On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. This made sense at the time. The Founders had a lot of experience with oppressive rulers and little idea whether the constitutional order they were setting up would remain free; maybe they would need to overthrow it sometime. After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
But, critically, judges shouldn't be in charge of stripping disfavored rights from the Constitution. If the courts can simply make gun rights disappear, what happens when the First Amendment becomes embarrassing or inconvenient? It corrodes the very idea of a written Constitution when the document means, in practice, the opposite of what its text says. The great beauty of the Constitution is that, unlike, say, the treaties that form the European Union, you can actually read it. You can see how its language embodies principles that still animate the day-to-day operation of American political life. When that is no longer the case, American democracy suffers; it gets unmoored from its source of legitimacy.
If we disagree with the Founders--and as to guns, I very much disagree with whatever they might have meant--we should say so and invoke that provision of the Constitution they specifically designed so that we could give voice to our disagreements with them. The Bill of Rights is sacred, but it is not so sacred that we should prefer lying to ourselves about what it actually says, rather than changing it as our needs shift.
It's true that repealing the Second Amendment is politically impossible right now; that doesn't bother me. It should be hard to take away a fundamental right. But that doesn't make it less wrong to ask Silberman and his colleagues to relieve the political culture of the obligation of trying.
It is certainly easier to pretend that's not what we're doing--that the Founders never created the right, and that our values and theirs (except, of course, concerning slavery, women, Native Americans, and few other odds and ends) are more or less congruent. It's a lot easier to pretend that Silberman--but not, of course, Tribe, Amar, or Levinson--is a dangerous radical. But it's not healthy. We should seek gun control and a Constitution that means something.
By Benjamin Wittes