APRIL 2, 2007
Two weeks ago, an appeals court panel struck down portions of Washington's ultra-strict gun control law, which prohibited almost all D.C. residents from owning guns. The decision, penned by famously conservative Judge Laurence Silberman, met with ire from predictable quarters. The New York Times accused the panel of storming "blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety." Meanwhile, my former colleagues at The Washington Post--where I used to write editorials--predicted that "this radical ruling will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder."
It's not difficult to see why gun-control advocates are angry. Silberman's reading of the Second Amendment--he argues that it recognizes the right of individuals to possess guns, not just the right of state militias--gives them plenty of reason to be nervous. Consider the following: "[T]he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification."Or this: "[From the Civil War on,] gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding 'privileges' of discrete 'citizens' to individual self-protection." Or this: "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."
The catch? None of these quotes were from Silberman's decision. In fact, all were written by 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 Second Amendment--a view he had long rejected. The second quote is from Akhil Reed Amar's ambitious history, The Bill of Rights. And the third is from a law review article by Sanford Levinson.
One can still muster strong arguments in favor of a collective-rights conception of the amendment--that is, a reading which protects the ability of states to have armed militias without extending gun rights to individuals. But the simple truth is that the individual-rights reading is currently ascendant, and not just among gun-loving nuts. If Silberman is a radical with blithe disregard for public safety, he is in exceptionally good company. And so, perhaps it's time for gun-control supporters to come to grips with the fact that the Second Amendment actually means something in contemporary society. For which reason, I hereby advance a modest proposal: Let's repeal the damn thing.
This seems to me the right response to the amendment no matter which broad historical interpretation is correct. If, as gun-control supporters have long argued, the amendment embodies only a collective right and the right to keep guns is indelibly linked to membership in Revolution-era militias--institutions that no longer exist--then the provision is already a dead letter, and repealing it would therefore be a simple matter of constitutional hygiene.
If, on the other hand, the amendment really does--as Silberman, Tribe, Amar, and Levinson claim--confer on individuals the right to bear arms, then it embodies values against which we should be prepared to fight. 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--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 policy questionon 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 now, for one thing, are a far cry from muskets,which could never have yielded the kind of street violence contemporary America sees routinely. Plus, the amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a check 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 the people would need to overthrow it at some point. After more than two centuries of constitutional government, however, it's safe to assume that an armed citizenry is not "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 obsolete 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.
So, if we disagree with the Founders, we should say so--and invoke that provision of the Constitution they specifically designed to let us 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 constitutional right. And it is certainly easier to pretend that's not what we're proposing--that the Founders never created the right and that our values and theirs (except, of course, concerning slavery, women, Native Americans, and a few other odds and ends) are more or less congruent. It's a lot simpler 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.
Benjamin Wittes is a guest scholar at the Brookings Institution.