Yesterday, DK's front page featured an article by Kaili Joy Gray, otherwise known as Angry Mouse (AM), arguing that liberals should love the Second Amendment. I've always enjoyed AM's writing, and when I see her byline, I make sure to read whatever follows it. Her writing on women's issues is invariably top-notch, and she dissects standard right-wing talking points with an intellectual rigor and a rhetorical skill that even those who might disagree with her (and I'm not one of those) would certainly have to admire.
So it was all the more disappointing to read AM's argument about why liberals should love the Second Amendment. In my view, the argument fell below AM's usual standards. If you care to follow me below the fold, I'll explain why.
The overarching fault in AM's argument is that, as we lawyers say, it "begs the question." That is, her argument presupposes one of the conclusions it is intended to establish -- that the Second Amendment guarantees an individual right to own guns. AM starts from the premise that such a right exists, and then wonders why liberals refuse to recognize it and embrace it:
Liberals can quote legal precedent, news reports, and exhaustive studies. They can talk about the intentions of the Founders. They can argue at length against the tyranny of the government. And they will, almost without exception, conclude the necessity of respecting, and not restricting, civil liberties.
Except for one: the right to keep and bear arms.
Liberals certainly do quote legal precedent, and they certainly can talk about the intentions of the Founders. Those are two reasons why liberals such as myself find unpersuasive the reasoning of the Supreme Court majority in District of Columbia v. Heller and McDonald v. City of Chicago. Those cases ignore established precedent and certainly don't find support in the historical record left by the Founders. But even putting that legal argument aside, the reasons AM offers for why liberals should love the Second Amendment themselves cut no ice. Let's take a look at some of them.
I'll begin with one of the most disappointing:
Those who fight against Second Amendment rights cite statistics about gun violence, as if such numbers are evidence enough that our rights should be restricted. But Chicago and Washington DC, the two cities from which came the most recent Supreme Court decisions on Second Amendment rights, had some of the most restrictive laws in the nation, and also some of the highest rates of violent crime. Clearly, such restrictions do not correlate with preventing crime.
I really expected a better argument from AM than this tired NRA talking point, which can't survive even the most cursory scrutiny. But since she decided to raise it, allow me to refute it yet again. I used to live in D.C. Yes, it had both strict gun control laws and a high rate of violent crime. The reason was simple. Anyone who wanted to could cross the Potomac to Virginia and buy guns freely and then take the guns back across the bridge to D.C. So what does this prove? Only that gun control needs to be national to be effective. Guns are small, easily concealed, and easily transported. Since we don't search people or vehicles who are moving across city, county, or state lines, states or localities with weak or nonexistent gun control regulations undermine the effectiveness of gun control elsewhere.
Moving right along . . .
No. 1: The Bill of Rights protects individual rights.
I don't quarrel with AM's conclusion that, in general, the Bill of Rights protects individual rights. But to say that the Bill of Rights generally protects individual rights doesn't establish that the Second Amendment does so. AM cites the language of the First, Second, Fourth, Ninth, and Tenth Amendments, with their references to "the people" as support for her argument. The problem isn't the language she quotes; it's the language she ignores.
First, she doesn't properly address what the prefatory language of the Second Amendment is supposed to mean:
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.
If the Second Amendment had been intended to create an individual right, then what were the Framers talking about when they included the italicized language? What they were talking about, in my view, was the need of individual states to maintain their own militias as a means of defending their own sovereignty against the power of the federal government, a concern discussed extensively at the time of enactment of the Bill of Rights. Perhaps AM disagrees with that view, but we don't know, because she never offers us any explanation of what the first half of the Second Amendment means.
Second, while pointing us to references to "the people" in other amendments, AM looks past the fact that if the Framers had wanted to make the right to bear arms a personal, individual one, they clearly knew how to do so. Need proof? Take a look at the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself . . . .
Similarly, the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ."
So it's clear that the Framers knew how to speak in terms of personal, individual rights when they wanted to. In fact, as Justice Stevens pointed out in his dissent in Heller, proposals were sent to the first federal Congress that, if adopted, would have explicitly created the kind of personal right to own guns AM is talking about. A never-enacted proposal from Pennsylvania read:
- "That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers."
So language that would have guaranteed a personal, individual right to "bear arms" was, in fact, proposed to the Congress, but it wasn't adopted. The fact that the drafters and enactors of the Bill of Rights chose not to use such language is pretty strong evidence that they didn't intend the Second Amendment to create some kind of individual right unattached to militia service.
AM tries to use the language of 10 U.S.C. § 311 to bolster her argument. To begin with, I don't think that the language of a statute enacted so long after the passage of the Bill of Rights is relevant to discerning the meaning of the Second Amendment. Even if it were, though, the statutory language actually undermines AM's argument, because it makes clear that the militia doesn't include everyone. The militia wouldn't, for example, be likely to include AM herself, since it includes "all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard." Simply put, this statute tells us nothing about the Second Amendment's meaning, and it doesn't even say what AM seems to think it says.
Next . . .
No. 2: We oppose restrictions to our civil liberties.
Again, I agree that liberals generally oppose restrictions on our civil liberties, but my disagreement is with AM's assumption that a constitutionally protected right to individual gun ownership is one of those civil liberties.
What's unpersuasive here is AM's attempt to analogize liberals' views of the Second Amendment with how we might view a hypothetical attempt to limit the scope of the Thirteenth Amendment. She correctly predicts that liberals would object to a proposal that would permit the enslavement of women, but thinks this would be somehow be inconsistent with liberals' support of a ban on handguns:
It's not like the law would enslave all people, or even all black people. Just the women. There's no mention of enslaving women in the Thirteenth Amendment. Clearly, when Lincoln wanted to free the slaves, he didn't intend to free all the slaves. And we restrict all the other Amendments, so obviously the Thirteenth Amendment is not supposed to be absolute. What's the big deal?
Actually, AM, the Thirteenth Amendment is pretty clearly absolute. All you have to do is look at the language quoted in your diary:
Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
It's pretty hard to argue that a law permitting enslavement of women wouldn't require that slavery "exist within the United States" in clear violation of this amendment. The fact that the amendment doesn't mention women specifically, and refers instead to the institution of slavery itself, actually demonstrates that it's intended to be an absolute prohibition on the practice of owning human beings.
Onward to . . .
No. 3: It doesn't matter that it's not 1776 anymore.
I'm frankly mystified by this heading, since it doesn't seem to relate to the hodge-podge of arguments grouped under it. And the arguments themselves are incredibly weak and misguided.
AM starts off by claiming that liberals who disagree with her view of the Second Amendment are motivated by their "personal dislike" of guns. Really? I thought some of us simply agreed with Justice John Paul Stevens' reading of the amendment. Or that we were horrified by the thousands of deaths that result from gun use annually. But AM presumes to read our minds, and then proceeds to trivialize the actual concerns and motivations of those who disagree with her.
AM also thinks this is odd:
Liberals will defend the right of Cindy Sheehan to wear an anti-war T-shirt, even though the First Amendment says nothing about T-shirts.
They will defend the rights of alleged terrorists to a public trial, even though the Founders certainly could not have imagined a world in which terrorists would plot to blow up building with airplanes.
Of course liberals defend Cindy Sheehan's right, because we realize that the First Amendment is concerned with protecting the message on Cindy Sheehan's T-shirt, not the garment itself. No one thinks the First Amendment is intended to regulate an individual's sartorial choices. And yeah, we defend the rights of alleged terrorists to a public trial, because well, that's what the Sixth Amendment requires. Look it up. It's part of that same Bill of Rights you're talking about.
And then there's this:
The Second Amendment is no more about guns than the First Amendment is about quill pens.
Not sure what to make of this. If the Second Amendment isn't about guns, then the U.S. Supreme Court has just spent a whole lot of time addressing an issue (guns) that AM seems to think is irrelevant to the discussion.
And then in summation, AM asserts:
No. 5: The Second Amendment is about revolution.
Where does one begin with a contention like this? Does one point out that the drafters and enactors of the Second Amendment, men who were no strangers to revolution themselves, did not once mention this as a rationale? Does one point out how improbable it is to believe that the Founders would have completely failed to discuss something so important as an alleged right to destroy by violence the very government they had just created?
Is AM willing to have our admittedly imperfect government overthrown by a small group of heavily armed malcontents? Does she really believe that that is what the Second Amendment is about? What, if anything, is her support for the hypothesis that the Second Amendment is about "revolution"?
* * * * * * * *
Kaili set out to offer a list of reasons why liberals should love the Second Amendment. If you've read this far, you'll see that I think she missed the mark for some of the reasons I've outlined. I know this is a controversial topic, and that's why I think it deserves a more careful analysis than the one she gave it.