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POLITICS FEBRUARY 26, 1990

TRB from Washington

Around the world, national theologies are crumbling: communism, apartheid, and, here in America, the worship of guns—to foreigners, the single craziest thing about us. Do you sense an outbreak of sanity about gun control? I do. There was retired Chief Justice Warren Burger preaching sacrilege on the cover of Parade magazine a couple of weeks ago. A Time/CNN poll reports that 87 percent of gun owners themselves favor a seven-day waiting period for handgun purchases; three-quarters favor registration of semiautomatic weapons and handguns; and half favor registration of rifles and shotguns.

Unfortunately, there is the Second Amendment to the Constitution: "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." As Sanford Levinson, a professor at Texas Law School, points out in the December Yale Law Journal (the article is called "The Embarrassing Second Amendment"), no prominent legal scholar has ever tackled this provision. The leading constitutional reference book dismisses it in a footnote.

Most right thinkers take comfort in that funny stuff about the militia. Since the amendment's stated purpose is arming state militias, they reason, it creates no individual right to own a gun—especially today when the only state militias are the National Guard. That reasoning is good enough for the ACLU But would civil libertarians be so stinting in interpreting an amendment they felt more fond of? Say, the First?

The purpose of the First Amendment's free-speech guarantee was pretty clearly to protect political discourse. But liberals reject the notion that free speech is therefore limited to political topics, even broadly defined. True, that purpose is not inscribed in the amendment itself. But why leap to the conclusion that a broadly worded constitutional freedom ("the right of the people to keep and bear arms") is narrowly limited by its stated purpose, unless you're trying to explain it away?

That word "infringed" is also pesky. First Amendment freedoms, by contrast, may not be "abridged." Wouldn't you say (if you didn't know the subject matter) that a freedom guaranteed against mere "infringement" deserves at least as robust a reading as one protected only against actual "abridgement"? TNR's Mickey Kaus says that if liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory.

Of course the hypocrisy is not just on one side. Second Amendment enthusiasts tend to be the sort who, in other contexts, are horrified at the thought of unelected judges overruling the will of the majority. They are happy to see other folks' dubious enthusiasms suppressed for the alleged good of society. Guns don't kill people—only pornography, drugs, etc., etc., kill people. But this doesn't free liberals to be hypocritical ourselves.

The most thorough parsing ofthe Second Amendment is a 1983 article in the Michigan Law Review by Don Kates, a gun enthusiast. Kates expends most energy demonstrating that at the time of the Bill of Rights, the word "militia" did not mean a separate, organized military force. All able-bodied men were considered to be part ofthe "militia" and were expected to defend the state if necessary. I'm not sure this is as clinching an argument as Kates seems to think. The fact that once upon a time everyone was a member of the militia doesn't prove that everyone still has a right to a gun even after the composition of the militia has changed.

But Kates has other bullets in his belt. The phrase "right of the people" appears four other times in the Bill of Rights (including the First Amendment). In all these other cases, everyone agrees that it creates a right for individual ci I izem, and not just some collective right of states as a whole. Then there is the phrase "keep and bear." The right merely to "bear" arms might just mean serving in the militia. But what does "keep" mean? Finally, Kates marshals impressive historical evidence that the Second Amendment, like other Bill of Rights protections, was intended to incorporate English common law rights of the time, which pretty clearly included the right to keep a gun in your home for reasons having nothing to do with the militia.

So there we are. If there is a good reply to Kates's fusillade, the controllers haven't made it. In a videotape distributed by Handgun Control, Inc. (of which I'm a member) for use in high schools. Harvard Law professor Alan Dershowitz blusters thai "asking about what the Framers would have done about handguns is absurd. No one can know." He compares it to another modem development, wiretapping. It's an unfortunate example. The Supreme Court has ruled—and even Robert Bork agrees— that, reasoning by analogy, the Framers would have wanted the Fourth Amendment's protection against "unreasonable searches and seizures" to apply to wiretappmg.

Of course the existence of an individual right to own guns doesn't mean that it is absolute. What are the limits? In the Supreme Court's one 20th-century treatment ofthe Second Amendment in 1939, it held somewhat ambiguously that sawed-off shotguns aren't necessarily protected by the Constitution without proof that they are the kind of weapon a militia might have used. Working from that decision and the common law, Kates says the amendment's protection should be limited to weapons "in common use among law-abiding people," useful for law enforcement or personal defense, and lineally descended from weapons known to the Framers. (No nuclear bombs.) He adds that they must be light enough for an ordinary person to carry {"bear"), and even that they can't be especially "dangerous or unusual." He says—NRA take note—that the amendment places no limit on mandatory registration or laws against concealed weapons in public (since state militias were required to produce their guns for inspection).

This list seems quite reasonable and moderate, though where it all comes from is not all that clear. In suggesting, for example, that it would be OK to ban automatic rifles but not semiautomatics, he is slicing the constitutional salami pretty thin. But in what I suspect was the main purpose of his exercise—establishing tbat a flat ban on handguns would be hard toijustify under the Constitution-r Kates builds a distressingly good case.

The downside of having a Bill of Rights is that the protection of individual rights usually entails social costs. This is as true ofthe Second Amendment as it is ofthe First, Fourth, Fifth, and Sixth. The downside of having those rights inscribed in a Constitution, protected from the whims of majority rule, is that they can't be redefined as life changes. It would be remarkable indeed if none of the Bill of Rights became less sensible and more burdensome with time. Talking and writing are as central to American politics as they ever were; shooting just isn't. Gun nuts are unconvincing {at least to me) in their attempts to argue that the individual right to bear arms is still as vital to freedom as it was in 1792. But the right is still there.

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posted in: politics, cnn, handgun control inc., michigan law review, america, alan dershowitz, don kates, mickey kaus, sanford levinson, warren burger, national guard, yale, texas

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