HEADLINE: A liberal’s lament: The NRA might be right after all
This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is “the right of the people to keep and bear arms.” Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.
Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.
The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District’s decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.
The Framers’ intent
Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “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.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.
Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.
Another individual right
More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.
Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.
None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
LOAD-DATE: October 4, 2007
36 thoughts on “A Liberal’s Lament: The NRA Might Be Right After All”
I am SO impressed with your fairness, Mr. Turley!
I think I understand and have not really thouhgt about it in those terms. I guess individual rights dont mean much if they lead to a society with no rights at all.
I’ll have to think about that for awhile.
I also tend to approach things from a utilitarian standpoint. You have basic human rights derived from existing and you have civil rights that are derived from government sanction, they may (and do) overlap, but in the end the civil should defer to the innate absent quantifiable social utility. Utilitarianism is why I think the argument over big vs. small government is a false flag argument. The real question isn’t size, but functionality in preserving maximum rights and providing the best possible services with the common good as the touch point. The most good for the most people. Call me what you want, to paraphrase mespo, but I’m for better for all. Systemic health of the whole vs. individual health. Take the cancer analogy again. At a certain point, that single cells unlimited rights at the exclusion of or placed in superior position to the rights of other cells reaches critical mass and the entire organism fails. If the body is healthy enough, omitting supervening causes, cancers have difficulty metastasizing much less growing. What we see now is tumor enlargement (greed) significant enough to cause organ damage if not death of the whole organism. It’s dangerously close to metastatic spread. It’s cancer of the banking system created by exposure to the toxic world of unregulated high finance, the carcinogen. But is our whole system healthy enough to survive the treatment?
I may not be understanding completely but if the individual is a mere cell in the community, then dosent he only exists at the pleasure of the community and has no rights whatsoever? Rights must extend from the very fact of being a human being, the right to life, liberty and the pursuit of happiness are not collective rights they are an individuals birth right and should be sacrosanct.
I start with the precept that all men are created equal.
Human rights, by their very nature of being imbued at birth to ALL inherently makes them collective. Individual rights, by contrast, are state sanctioned and totally dependent upon what governance structure you live under.
For example, an ER doctor gets an unconscious patient who requires surgery. Unknown to the doctor, this person’s religious beliefs – a human right implied by the Establishment Clause – conflicts with his his state sanctioned right to practice medicine – an individual right or civil liberty derived from satisfying the state that the person indeed has the requisite skill to practice medicine. Should the patient be able to recover based on the violation of their human rights in receiving unwanted medical care?
I’d have to say it depends.
If there was no deliberate action by the doctor to violate the patient’s human rights, but he was merely acting properly to save a life while practicing within the bounds of state prescribed medical laws, then the answer would be no. This is an instance where the individual right has such a high social utility (saving a life) that an unintentional violation of the patient’s human rights should be excused. So there are instances where the social utility of a civil right outweigh the social utility of an individual’s human rights. Now consider the opposite scenario when the doctor had reason to know he was operating contrary to the patient’s express intent. Then the answer would be yes. The doctor’s social utility does not trump his WILLFUL violations of human rights.
There are VERY limited circumstances where an individual right should be allowed to trump a human right as the above example illustrates. None of that changes that the patient has an inalienable human right to worship as they please. This water becomes even murkier in the scenario of a parent refusing medical treatment for a child based upon religious reasons. Conversely curtailing an individual civil right, unless it happens to be related to or directly a human right, almost never has a broad based negative effect.
The distinction I make between the two is simply source of the right. That example should also illustrate why individual rights should be curtailed generally (although not always) in the face of a human right – the potential for state abuses for ideological reasons over the pragmatic.
You see this in the abortion debate all the time.
It comes down to one group saying that their religion thinks abortion is murder is sufficient reason to oppress the human right of woman’s self-determination and property rights to her own body – so it’s a two-fer, damaging both a human right and a civil right. In effect, it begs for the state to endorse the beliefs of anti-abortionists in clear violation of the Establishment Clause on top of trampling the human rights of others. I also point to the well-worn trope about yelling “Fire!” in a crowded theater. It curtails the right to free speech (a human right and, because of the First Amendment, also a civil right) for the individual, but it also discourages people from starting unwarranted panic in the whole (panic is a threat to security) by imposing legal sanction on the individual for misusing their human and civil right of free speech. Now would that be permissible if the law stated one cannot yell “Xenu sucks!” in a crowded theater? You can see what a slippery slope that is, but unless you distinguish between innate and state sanctioned rights, it’s just a slicker surface. The distinction is critical as an analytical tool to assure proper “grip”. In the case of Xenu shouting, you can also see where Sharia fails – the right to belief must stop at the right to impose belief or human and civil rights will always be in conflict. The religious base material for Sharia is not rights based, but rather based in dogmatic repression and oppression rooted in Muslim theology. The belief that Xenu sucks and stating so in public is far less damaging to the social utility provided by free speech than yelling fire. In fact, it encourages debate. I think we can all agree that is not a bad thing. Debating beats physical confrontation.
I’ll agree it’s not a black and white subject, but I think that the distinction – even when fuzzy and requiring Venn diagrams – is important for proper analysis of what is and is not a proper way to curtail either human or individual rights. The problem arises in this country because we recognize many human rights as a civil right and the fight to maintain the interests of individual liberty and social utility comes into play when talking about restrictions. Being that human rights apply to all by their very nature and individual rights are a matter of politics and social utility, then I have to say bias towards human rights in resolution of conflicts is not only a good thing, but a necessary thing. Otherwise you’ll get false outcomes that do harm to human rights and provide no social utility – like unlimited detention without trial.
It’s the dogmatic insistence of the individual civil rights over the collective human rights that I think is one of objectivism’s greatest weaknesses. It’s like saying a cell has a greater right than the whole body to both exist and consume resources. Medicine has a name for that.
Arent we talking about the same thing? Arent human rights and individual rights identical? I dont think the state can grant an individual right or it really isnt a right and that I think is the problem with state granted rights. As you say human rights are inalienable and extend to man not from the state but from mans nature as a rational being. I dont distinguish between human rights and individual rights. They are, in my mind one and the same. However if by human rights you mean the rights of the collective vs. the individual then I do disagree because in my mind if you have collective rights you cease to have individual rights. History is littered with the collective trampling of individual rights.
I agree that people should/need to behave ethically and honorably when conducting business and any violation of law or ethics should be prosecuted and/or shuned. A free and open exchange of value for value. I think cronyism is a blight on capitalism, if you cannot compete on the merits then get out the way and let those that can, do. I think that our political and wealthy class have conspired on more than one occassion to inhibit competition and restrict entrance to the “game”. A truly free market, in my opinion, is not a threat to freedom but a controlled economy is and for the reasons you mention above.
I also think that too many people are lulled into a sense of security because of organizations like the FDA and SEC, they believe these groups and look to them to let them know if somehting is safe. We all know how well that is working. If we did not have those orgs. then people might take more time to look into the consequences of their actions. The SEC was warned about Madoff, what, 10 years ago and did nothing.
The very nature of man requires that he live in freedom. A rational being is able to do nothing else. If I had to live in a country like North Korea or Communist China I would go insane or become like the character in 1984 at the end of the novel.
I’ll agree with that but with the stipulation that as far as individual rights go, I’m more concerned with human rights. If the individual right of a person is interfering with the human rights of another (e.g. the right to profit by illegal or unethical methods at the expense of either the rights or well-being of another or society as a whole like Bush did in violating the Constitution so his buddies could profit) then human rights wins. Human rights are inalienable and innate to being human, individual rights are a state granted privilege that should, in a proper society, inform and supplement human rights, not be used to trample them. If you keep the distinction between human and individual rights in mind, I think you’ll be becoming even more dissatisfied with objectivism.
From this blog I have learned that there are 2 types of liberals, I had previously lumped them together under one category to wit:
1. liberal – rights abusing statist
I now understand that one can be liberal and be for individual rights, although that would be a liberal in the classical sense of the term. And I should tell you that conservatives like myself consider individual liberties sacrosanct and there are many of us, so it would seem that the chasm is one of economics rather than liberty. Although I still do not understand why a most basic right to use our money for our own purpose is not thought of as such.
As far as the second amendment goes I wonder why it is taking 200 years to settle what seemed to me to be self evident. The arguments that Prof. Turley is making have been made by conservatives for years.
Since humans so like to create categories, it often surprises conservatives that a person of liberal bent would favor the Second Amendment . . . until you bring up Jefferson.
Good show. Jefferson was no fool.
Thank you for your article on the right to bear arms. I think that a point is being missed here. In the constitution, as well as many of Jeffersons writings, it was stated that the government was a creation of the people, and it was also the peoples right to replace that government if it ever became corrupt. Jefferson was of the obviously accurate opinion that given time, our government would forget that “we the people” are truly in charge, not the federal gov’t. In the section that speaks of life, liberty and the pursuit of happiness, it also goes on to state the peoples right to over-throw the government if and when it stopped observing the Constitution and the BofR. Jefferson openly stated that the people would probably need to do this several times. For this reason alone, and the fact that the end part of the 2nd amendment states “and congress shall not infringe upon this right” make one believe that the right to bear arms was granted expressly to the people to defend themselves against a tyrannical government. When government fears the people, that is freedom, when the people fear the government, that is tyranny.
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