Taking Rights Seriously Means Taking Guns Seriously

As noted by other commentators, the Supreme Court’s decision this past Monday, in McDonald v. Chicago, No. 08-1521 (June 28, 2010) (pdf), suffers from no lack of irony. Here we have two of the Supreme Court’s staunchest opponents of positive rights — Alito, who has previously tried to gut Roe, and Thomas, who speaks of “a proliferation of rights” as if it’s some ominous thing — penning ringing defenses of the principle of “incorporation”: the idea that states, too, should be bound by the Bill of Rights. And, arrayed opposite, the four reliably liberal jurists arguing for a limited view of the Amendments. This split ought to be discomforting, for both sides of the debate, and we on the left should endeavor to bring consistency at least to our position.

The McDonalds appeal posed three questions: (1) whether the Privileges & Immunities Clause, neutered by the Reconstruction Court, ought to make the full Bill of Rights applicable to the states; (2) whether, if not, the Due Process Clause picks up the slack, and; (3) whether the Second Amendment retains its vitality despite the passage of centuries. Both wings of the Court passed on #1, refought #3 to the same result, and split over #2.

Truly there’s room for principled debate over the second question. The Supreme Court’s hitherto disjointed treatment of incorporation doctrine leaves adequate cause to argue that the Second Amendment is not “an indispensable attribute of any ‘civilized’ legal system,” and therefore ought not to be incorporated against the states. But that doesn’t mean this is a battle worth fighting. The terrain is too slippery, the inconsistency resulting from victory too troubling, and the argument too pointedly at odds with a tenet otherwise central to our political philosophy: that while states can and should experiment with methods of governance, and ought to be free to protect rights at some level above a federally mandated, constitutional floor, that floor ought to be one that takes serious rights seriously.

If there’s to be a liberal case against incorporating the Second Amendment, then, it has to be based on the idea that the Second Amendment isn’t serious; that it doesn’t mean what it says, and that the history isn’t what it is. We lost this uphill battle years ago. 2008’s Heller binds us to an expansive view of the Amendment, and it’s probably right, constitutionally. Of course, that doesn’t make it good policy. In fact, the Second Amendment is best viewed as a dangerous relic, the kind that puts lives in danger by virtue of its very existence. Like the Maltese Falcon. But it’s there, and we need to live with it.

This means giving up on gun regulation as a question to be resolved legally, taking the Second Amendment seriously alongside the rest, and accepting the rather serious silver lining that, on Monday, the Supreme Court made conservatives cheer the Fourteenth Amendment. It doesn’t mean giving up on controlling gun violence, an issue we should now strive to address culturally. That’s a longer battle, but it’s one we can fight and win while remaining faithful to our larger ideology.



  1. “In fact, the Second Amendment is best viewed as a dangerous relic, the kind that puts lives in danger by virtue of its very existence.”

    I’m curious as to what you would propose as an alternative. Would you prefer no legal right to gun ownership or just see those rights severely limited?

    Also, I’d like to hear your ideas for what we should do to address this:

    “It doesn’t mean giving up on controlling gun violence, an issue we should now strive to address culturally.”

    1. Chris thanks for the linkback!!! Love it!!!

      And Mike, there is no alternative, practically speaking. A limited right to handguns and rifles but not assault weapons, predicated on strict licensing, would be lovely. But it’s not going to happen. The British regime — no guns, period — would be better, but is unrealistic in a country that still has “frontiers.”

      My last point means making gun education a regular thing. They shouldn’t be glamorous except in the movies. And vigorously prosecuting breaches of the few gun laws that remain, and seeking maximum sentence for gun violence crimes.

      1. We’ve discussed assault rifles before. You’ve admited yourself that you don’t really understand the designation. So why call for banning them?

        Why no guns period? You would prefer shooting end as a sport, hunting, etc?

        Gun education really doesn’t work (kind of like sex ed, but that’s another topic). I am with you on stricter enforcement of our laws. If you want to truly end gun violence then stop trafficking. That’s the reason why we see gun violence in cities and the fed is woefully uninterested in stopping it.

      2. It is technically legal to own guns in the UK, although it’s fairly difficult to get a license (you need to show a ‘valid reason’), and they come with a lot of restrictions. Self-defence doesn’t count as a valid reason, and anything heavier than a hunting rifle or shotgun would probably be impossible for anyone.

        1. I didn’t quite understand what Ames meant on that point either.

        2. I think the point is clear enough, I just intended a small clarification. For the vast majority of British citizens, gun ownership is de facto illegal because they’re unable to show valid cause. This even extends to some sports, such as pistol shooting which is illegal.

          1. I don’t know what is more sad – the laws in the UK or the fact that Ames would prefer to see them here.

          2. US gun homicides 2007: 12,632
            UK gun homicides 2008: 42

            I’m just saying…

            1. Guns owned in the US: 280 million

              Guns used in gun crimes in the US in 2007: 300,000

              So the answer is to ban the other 279,700,000? I’m just saying…

            2. At least it seems that not banning them is not doing very much for the statistics, so maybe it’s about time to try a different approach?

              1. Oh I agree. As I stated previously, we need to enforce our trafficking laws. I am going to cite one of my own blog posts here, not because of what I wrote but because the article I quoted from at Democracy Journal is only available to members:


                Jim Kessler writes:

                “We also know that in 89 percent of crimes, the person using the gun was not the person who originally bought it. In 34 percent of crimes, the firearm was bought in one state and used in a crime in another. And in 32 percent of crimes, the firearm was less than three years old.

                This indicates that the root of America’s gun crime problem is not the number of guns in the hands of Americans, but an extensive web of gun trafficking operations that funnel firearms to criminals. In some cases, the trafficking operations cover long distances. Nearly 40 percent of all crime guns recovered in New Jersey and New York came from Virginia, Georgia, Florida, and the Carolinas. Nine out of 10 crime guns changed hands between the first purchase (which was likely legal) to the last purchase (which was certainly illegal).

                The vast majority of guns in the US are used responsibly and my experience is that a great number of them sit in gun safes and rarely get fired. The problem is gun trafficiking. In places like NYC the laws on gun possession are very strict and it’s very hard to get a gun legally. So why do so many criminals have them? Because they are shipped in from states where it is easier to buy guns and sold on the street. Stop that and you reduce gun crime in a big way.

                1. Uggghhh…that last paragraph was mine.

              2. That sounds like an okay idea in principle, but is it actually realistic? Or wouldn’t it be both simpler and better to stop the supply at the source, by making it more difficult to buy guns?

              3. What statistics? 12,000 homicides a year? In a country with a population of 300,000,000, over a year with 365 days? Being concerned about such a paltry number strikes me as alarmist.

                1. I realize that you attach only a minimal value to human life, but even in relative terms, when compared to other countries, 12,000 homicides or about 4 per 100,000 is a pretty high number. It’s not Colombia or anything, but it’s well above the median.

                  1. I hate to roll out a well-worn cliche but if you took away the guns people would just use something else. It’s not as though inner-city gangs would suddenly close up shop.

                    It also appears that even without guns, violence continues to be a major problem in the UK. Granted, they don’t end in murder as often but it seems that humans will always want to hurt one another.


  2. Strictly speaking, the “conservative wing” didn’t pass on #1, it split. And honestly, I preferred Thomas’s concurrence to the plurality. Reliance on precedent be damned, Slaughterhouse is indefensible, always has been indefensible, and should be overturned.

    Also, reading through all 200-odd pages of that took a very long time. Dammit, Scalia and Stevens, did yall have to have a pissing match over… I still can’t tell what.

    1. I should add that the “presumptively valid restrictions” language that reappears from Heller bothers me, on account of being dicta-that-will-probably-be-controlling-despite-not-being-on-a-briefed-or-argued-matter. That’s sloppy judging.

      Also… I guess I just hate the existence of Brandeis briefs, since “will put lives in danger by its very existence” is the sort of thing that should, in my mind, be irrelevant to the courts (if not irrelevant altogether) – and bothered me about the Breyer dissent.

  3. Lanfranc,

    It’s completely do-able. The fed just needs to enforce the laws we have on the books. Both the Clinton and Bush administrations were unwilling to pursue traffickers. This has to change. There are a lot of guns that move through a very predictable corridor on the east coast, for example. Why aren’t we getting more of them?

    There are some good bills out there. An example would be HR 4298 which I believe is stuck in committee at the moment. Unfortunately if it ever comes to a vote my friends in the NRA will probably mount a successful effort to kill it.

    Trying to stop gun violence by banning gun production would just create a black market. Also (and I am no civil war alarmist) if there was a British-style ban on guns there would be open rebellion in this country. Would you want to be a national guard commander tasked with rounding up 280 million guns from an angry population?

    1. I wouldn’t, but that’s not going to happen anyway. But I see no reason why there couldn’t be stronger restrictions on the sale of guns, in addition to making trafficking a law enforcement priority. Hitting the supply and the logistics at the same time seems logical.

      And you’re quite right that the UK certainly has a problem with knife crime and other types of violence, although exactly how much a problem and whether it’s in- or decreasing is a matter of debate. However, all else being equal, getting stabbed is much less lethal than getting shot, so I think it matteres a great deal how many and what sort of weapons are floating around in society.

      The proportion of homicides involving guns is also significantly higher in the US – the UK has 40 out of some 650 or so total homicides a year, while in the US it’s 12,000 out of around 18,000.

      1. You and I are in 100% agreement on tougher restrictions for gun sales. I’ve happily submited to background checks for my gun purchases with no complaint. In this day and age there is no reason why there shouldn’t be an instant background check available. In lieu of that, I support a waiting period even if that means closing gun shows. To take it one step further I am a big fan of putting serial numbers on bullets. Anything we can do to make gun crime harder, i am all for it, short of banning guns themselves. It’s my belief that responsible gun oweners should all be on board with this, but there’s a lot of distrust there.

  4. You choose not to note that the general level of crime and violence has gone up in England since the gun bans.

    The gun bans have not stopped criminals from getting guns. There is a flood of guns from Eastern Europe into England.

    Unlike you armchair totalitarians I lived in England. I don’t want to see America become England.

    1. Actually, the crime rates have dropped quite a bit for the last 15 years, although I guess one would have to read something other than the Daily Mail to notice it.

      And if guns are really flooding into England, I sort of wonder what they’re being used for, again considering less than 50 gun homicides a year.

  5. […]What’s even scarier is that there are some folks here in the US that find the European model enviable.[…]


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