Given the distrust of the NSA it's no wonder that the NRA is so adamant about gun rights.You can see the superficial logic of the argument—if you fear tyranny via the surveillance state, then you should equally fear a government monopoly on arms. But this logic is flawed and contrary to liberal thought in the 20th century (it remains to be seen what liberal thought will produce in the 21st century). I want to use two quotes to illustrate my point. The first is from Louis Brandeis' famous dissent in Olmstead:
"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. [...] We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387; Buck v. Bell, 274 U.S. 200. Clauses guaranteeing to the individual protection against specific abuses of power must have a similar capacity of adaptation to a changing world. [emphasis supplied.]Brandeis is expounding a form of Living Constitutionalism (or if you prefer, Living Originalism).
More thoughts on the other side.
Brandeis is saying while we must look to our federal government to adapt and respond to collective action problems, or national problems, like health care, economic growth and job creation, the life and growth of our Constitution is not confined to growing the power of our federal government, it also is necessary to breathe life into "Clauses guaranteeing to the individual protection against specific abuses of power." Thus while we must and do applaud the counterrevolution against Lochnerism that was the New Deal, we also applaud, as liberals, the Warren Court's expansion of individual rights against government intrusion on our liberties and privacy.
In Olmstead, Brandeis was faced with adapting the liberty and privacy rights embodied in the 4th Amendment with regard to the then relatively new technology of the telephone. While recognizing the national power to regulate (in that case, it was enforcement of the National Prohibition Act) at the same time the clauses of protection from government power must also grow, in this case the liberty and privacy rights protected by the 4th Amendment.
In today's world, the technological challenges to our privacy and liberty rights are expanding at a dizzying pace. Our understanding of our constitutional rights requires an adaptation of the purposes of the protective clauses to our modern world.
Why? the skeptic might ask, does not the same apply to gun rights (FTR, it is my view that the Second Amendment's purpose was never to protect individual gun rights but rather to deny the federal government a monopoly on arms by guaranteeing the States the right to maintain armed militias)? After all, is it not government tyranny that we fear? I think this is wrong both in identifying what we fear and it is also wrong in not identifying the balance of interests the government has in restricting gun rights.
A simple thought: On September 11, 2001, over 3,000 Americans died from a terrorist attack. Since that day, over 300,000 Americans have died from guns. Does expanding individual gun rights strike the right balance given our modern condition? And conversely, does restricting our privacy and liberty rights strike the right balance with regard to the terrorist threat? I argue it does not. (Indeed, Barack Obama argued it did not prior to 2009.)
A vibrant and capable national government does not require an erosion of our liberty and privacy rights as we commonly understand the terms. Our liberty right does not mean we are free from taxation. To the contrary, a vibrant government is essential to maintaining those rights. Is restricting gun rights a restriction on our liberty? I think so. But on balance, I think it is the correct policy and consistent with the Constitution.
The other quote I want to offer comes from the famous footnote 4 from Carolene Products:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California,283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.This famous footnote is one of the seminal expressions of 20th century liberalism. What is it telling us? It tells us within the general principle of judicial deference to the elected branches of our federal government as expressed in the body of the opinion, there is as well a general impetus to, as Brandeis put it, adapt protective clauses in the Constitution to our changing world. And it says something more—something that makes us liberals and Democrats—that the Constitution should also be used to protect the defenseless, to help the powerless, to defend the oppressed. Remember the words:
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n 2, and cases cited.
[W]hether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.Of course, the Carolene footnote was breathed life by the Warren Court and is now under mortal attack by the Roberts 5.
But these seminal statements of liberalism, at least as it existed through the 20th century, are the logic behind our skepticism about the surveillance state and, at the same time, our rejection of the need for liberalization of individual gun rights.
It is who we are, or at least, who we used to be. And who we should strive to be again.