May 24, 2010

Why did liberals give the Second Amendment away?

Unfortunately, most liberals are wusses. They let conservatives interpret and own the Second Amendment. So when Scalia made up the individual right to own firearms for the purpose of self-defense (an outstanding example of true judicial activism), liberals had only milquetoast counter-arguments. When Elena Kagan faces the Senate Judiciary Committee, she will make a generic statement that she supports the Second Amendment, without challenging Scalia's interpretation. Democratic politicians do it all the time, even if they really do not believe in any of the reasoning in Heller.

That makes liberals look like an unprincipled bunch, cherry-picking the Constitution. In fact, they are stupidly squandering the opportunity to take the high ground in every respect.

Scalia's interpretation makes no sense. There can't be a right to own all weapons - I bet Scalia would not support Heller's right to keep nuclear bombs in his home - so where do you draw the line? If handguns must be allowed, can bazookas be banned? Probably, but that is just as arbitrary as saying that swords must be allowed, but guns can be banned. There is no principled way to determine the limits of this "right".

By contrast, the interpretation that makes complete sense is that the Second Amendment guarantees the right to serve in the military. That is what "to bear arms" means. People don't "bear arms" when they go hunting; that is not, and never has been, the idiomatic use of that phrase. This interpretation fits well in the context. It makes the "well-regulated militia" reference relevant, and the right recognized by the amendment meaningfully curbs a practice that was common in the 18th century, to limit military service (or officer ranks) to upper classes.

This interpretation was politically meaningful in the 18th century, and it is politically meaningful now. It makes it unconstitutional to deny the right of military service to homosexuals. (That it is currently denied only to those homosexuals who do not hide their sexual orientation does not change anything. A whole class of citizens is excluded, it's just that the government is limited in the ways it can ascertain membership in that class.)

Why is no politician using this argument? Where are the liberal jurists or law professors arguing for this view? I googled gay military "second amendment" and the top hit that combined the terms in this sense (and the sixth hit overall - the top five were not relevant) was a comment on a blog. Kudos to ober from albany ny for comment #9 here:
The second amendment of the US Constitution says "A well regulated militia, being necessary to the security of a free state, the right to keep and bear arms shall not be infringed." If this is true, that we have a right to bear arms, then how can the government stop its citizens from joining the military? It seems to me that gays have a right to join the club. And the second amendment guarantees a person's right to join the military. If the military is not open to all of the country's people, then that might allow factions to gain control of it. A country whose military is dominated by one group may turn on the others: Can tyranny be far behind?

That's right. Notice the inanity of the reply by one Capt, USMCR:
There is no right to join the military. There's a duty to serve, but not a right to serve. If you can't see well enough to shoot - is it a civil rights issue? Should we tell the Marine Corps that the policy/slogan "every Marine is a rifleman" is a civil-rights violation? The right to bear arms, n the other hand, belongs to all citizens, whether members of the military or not. The 2nd amendment's militia isn't the military - it's a hypothetical draft of every able-bodied man - assumed to have acquired competence with a rifle on his own in the woods. I just hope that my legally blind neighbor sticks to knives and baseball bats.

That's just silly. Freedom of expression does not mean that an illiterate person is entitled to have an op-ed published in New York Times. Marriage and reproductive rights do not mean that the most repulsive guy in the world can force some woman to marry him and bear his children. And equality of rights in education does not mean that those who cannot pass first grade are entitled to finish college. Of course competence is required, but exclusion of a whole class unrelated to ability is clearly forbidden in all analogous situations.


James Hanley said...

First, love the blog title. Wish I'd thought of it.

Second, I can't agree that Scalia made up the idea that firearms ownership is an individual right. Legal scholars have been coalescing on that point for some years now, including many liberal legal scholars.

Third, on the issue of a right to join the military. I just returned from a workshop held by the Marine Corps for academics. I was told that last year one academic asked if blind people were allowed in the Marines, and when told, "no," objected that this was discrimination. That's neither here nor there as a comment on your post, but I thought it was amusing enough to share.

Anonymous said...

The desire to ban guns is as prevalent in liberal quarters as the artificial worship of guns is among the right wing. Go to democraticunderground, for example, and observe the fairly split range of opinion there on guns and the 2nd amendment. Some liberals are cheering McDonald.

The bazookas and more argument strikes me as the same kind of argument that conservatives make when they posit that gay marriage will lead to people marrying their dogs. I suspect someone thinking on it, not even that much, would come up with all sorts of relevant lines and distinctions to draw between A and Z.