Open University

Some Thoughts On Keeping And Bearing Arms


by Sanford Levinson
As most readers are aware, the Circuit Court for the District of Columbia recently invalidated the District's basically absolute ban on the private possession of loaded guns. The 2-1 decision relied on the Second Amendment: "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." In his Washington Post column on Sunday, March 18, George Will was kind enough to refer to an article that I wrote in 1989, "The Embarrassing Second Amendment," which argued that political liberals had rather shamefully (and shamelessly) refused to take the Amendment seriously, even as they/we demanded that the American public (including the 3 million members of the NRA) take very seriously indeed liberals' reliance on other parts of the Bill of Rights to invalidate popularly supported measures such as the prohibition of flag burning. In his column, Will suggested that the decision poses a special problem for Democratic candidates for the White House, since it places the issue of gun control front and center once more, and therefore liberals will once again have the opportunity to alienate "Reagan Democrats" who left the Party in part because of the perceived disdain by elites for the culture instantiated in those who wish to possess guns, for whatever reason.

I actually disagree with Will on the politics. The "virtue" of the D.C. law that was struck down was its basically absolute character: It came very close to fulfilling the NRA image of what they believe liberals really want, which is a prohibition on the possession of private handguns. Since there are all sorts of reasons to believe that such an absolute prohibition would indeed be unconstitutional, a position, incidentally, now endorsed by such a leading liberal academic as Harvard's Laurence Tribe, I think this is a perfect occasion for Democratic candidates to indicate their basic support for the D.C. decision. This is all the more true because, if read carefully, the decision is scarcely "absolutist" in its protection of firearms. It readily concedes that some control is legitimate (just as is the case, incidentally, with speech); it rejects only the full-scale prohibition legislated by the District of Columbia.

One might well wish a world without any firearms at all. But in a world where criminals have readily access to firearms, liberals should take seriously the claims of persons afraid of violent crime that they themselves might need firearms as a means of self-defense. Yes, it is true that children (and others) are killed as the result of the availability of firearms, but it is a grim truth that more children die by drowning in backyard swimming pools or, for that matter, of athletic injuries. "We" seem more understanding of the value of the swimming pools or of high school athletics than of the potential value, to many, of firearms. This is, of course, part of the great cultural divide that Democratic candidates should be trying to overcome. Bill Clinton helped to lose the House of Representatives in 1994 by his insistence on a basically symbolic piece of "gun-control" legislation involving "assault weapons." Was it worth it?

A second thought, this time dealing with Iraq: One of the standard pieces of conventional wisdom, shared by all sides (at least in the U.S.) is that all militia groups must disarm and accept the monopolistic control over the means of violence by the centralized Iraqi government. It is as if we are all devotees of Max Weber, who defined the state in part by its monopolistic possession of the legitimate use of force. But imagine that you are advising any given group within Iraq (other than those few devotees of the central government, such as it is), Sunni, Shi'ite, or Kurdish (not to mention Turkamen and other groups within Iraq). Would any rational adviser counsel giving up one's arms and placing blind faith in the willingness and ability of the central government to protect any given group's interests? "Trust but verify," Ronald Reagan famously said with regard to international disarmament. Why should any group particularly trust the yet unformed national government of Iraq, and, just as much to the point, what are the mechanisms of verification that would lead a rational person to place more faith in the central government than, say, the Kurdish peshmurga?

What is particularly ironic is that the Bush Administration, which has adopted in substantial measure the NRA understanding of the Second Amendment, repeats the "militias must disarm" mantra with regard to Iraq. But, then, one has never expected intellectual cogency (or even basic intellectual honesty) from this particular Administration. Will the Democrats, though, do any better?

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