In political debates, it seems fair to say most of us think we operate as follows: First, we study the issues. Second, we reach conclusions based on the best arguments and evidence. Then we seek out those who share our conclusions and the reasons for them. Finally, we make common cause with the like-minded.
Unfortunately, research suggests people often do precisely the opposite. To a much greater degree than we would like to think, we choose up sides first. Then we align our conclusions with what our side thinks about a particular issue. Then we adopt the arguments that best support the conclusions our side favors—even if we dispute those same arguments in other cases.
If you’d like an example, take the current debate about guns.
Since the heinous tragedy at Sandy Hook Elementary in Newtown, Conn., last year, liberals across the country have waged an intense and sustained campaign for tighter gun control. One of the arguments they are currently deploying is historical. Zachary Elkins, a professor at the University of Texas, put it this way a few days ago: “The Second Amendment seemed almost irrelevant for most of our history. In the 19th and 20th centuries, many American towns and states regulated guns. . . . But in the 1980s, a movement to interpret the amendment as promoting the right to bear arms for self-defense emerged.”
Writing in The New Yorker roughly a year ago, Harvard’s Jill Lepore made a similar argument: “In the nineteen-seventies, the N.R.A. began advancing the argument that the Second Amendment guarantees an individual’s right to carry a gun.” She explains this as part of a broader conservative political strategy: “Describing gun-safety legislation as an attack on a constitutional right gave conservatives a power at the polls that, at the time, the movement lacked.”
This “novel interpretation” of the Second Amendment, as it has
been called, finally prevailed at the Supreme Court in 2008 in the
Heller case, and again two years later in
McDonald. Those rulings thoroughly outraged most liberals,
which is remarkably strange—because they were precisely the sort of
rulings liberals have long celebrated.
In cases from Griswold (privacy) to Miranda (criminal law) to Roe (abortion) to Lawrence (sexual liberty) to Hollingsworth and Windsor (today’s gay-marriage disputes), progressives consistently (and correctly) have advocated an expansive reading of the Constitution—one that recognizes new rights even where doing so might seem a bit of a stretch.
The Constitution does not explicitly mention a right to privacy, for instance. But in Griswold the Supreme Court discerned one in the “penumbras” and “emanations” of other constitutional rights. And liberals think that is splendid, since—they say—the Constitution is a living document that ought to grow and change with the times.
As Lepore notes in her New Yorker piece, “Gun-rights arguments have their origins . . . in twentieth-century liberalism” and the “rights revolution” of the 1960s. Yet generally speaking, liberals disdain the right to own firearms—despite the fact that it receives explicit mention in the Constitution. So they are now doing something unprecedented: advocating that a constitutional right be curtailed, and perhaps even revoked.
Conservatives are shifting tactics, too. Generally speaking, those on the right have little patience for the view of the Constitution as a living, organic thing that confers new rights as times change. They harbor little affection for novel constitutional theories, scoffing at Roe’s reasoning and the notion of a constitutional right to gay marriage. They read the Constitution narrowly—except when it comes to the Second Amendment. In that instance they have, correctly, embraced the new and more expansive reading of Heller and McDonald.
The two sides are trading playbooks in other ways as well. For instance, liberals now frequently invoke common sense—as in, “common-sense gun-control measures,” which supposedly stand in contrast to extreme, rights-based resistance to measures meant for the protection of public safety. This is precisely the argument conservatives long made against the exclusionary rule—which prohibits using evidence against a criminal defendant if it has been improperly obtained.
To law-and-order conservatives, letting a murderer get off on a “legal technicality” so he can kill more innocent people is not faithful adherence to constitutional law—it is a ridiculous violation of common sense. Likewise, after 9/11 conservatives argued that both common sense and the common good demanded adopting stern anti-terrorism measures, from warrantless wiretapping to indefinite detention. Saving innocent lives from crazed mass murderers, most conservatives said, was far more important than silly constitutional abstractions. This is precisely the same argument liberals are making now about guns.
Such team-sports fealty ends in absurdity. To conservatives, the federal government’s potential for domestic tyranny justifies armed resistance—but that same government can do no wrong in the war on terror. To liberals, the same government that is a half-step away from fascism in the war on terror is our benevolent guardian against domestic firearms.
Maybe they’re both half right.
This article originally appeared in the Richmond Times-Dispatch.