Liberals, Guns, and the Constitution

Damon W. Root | February 10, 2009

As Brian Doherty noted earlier, the Second Circuit Court of Appeals has held that the 2nd Amendment does not apply against state and local governments. In more positive gun rights news, the Constitutional Accountability Center, a liberal law firm and think tank "dedicated to fulfilling the progressive promise of our Constitution's text and history," filed a friend of the court brief last week on behalf of the plaintiffs in McDonald v. City of Chicago, arguing that the 14th Amendment's Privileges or Immunities Clause does make the 2nd Amendment applicable against the states (Alan Gura, the lawyer who argued D.C. v. Heller before the Supreme Court, is representing the plaintiffs in McDonald). Among the authors of the CAC's brief is legal scholar Michael Kent Curtis, one of the foremost experts on the history and meaning of the 14th Amendment. Curtis was also the lead author of the friend of the court brief filed last fall in Nordyke v. King, which also argued that the 2nd Amendment applies to the states via the 14th.

To put all of this in perspective, remember that until two decades or so ago, liberal legal thinkers held almost unanimously to the now-discredited collective rights interpretation of the Second Amendment. One of the earliest and most influential dissents on that side came with Sanford Levinson's 1989 Yale Law Journal article "The Embarrassing Second Amendment," which argued that liberals needed to take all of the Bill of Rights seriously. So it's great to see CAC following a similar trajectory, even if their recent study of the 14th Amendment left something to be desired.

Comments

|2.10.09 @ 6:23PM|#

Talk, talk, talk, year and the courts will recognize the validity of the ninth and tenth and by then we will have mandatory universal health care, mandatory federally run volunteer programs for everyone between 15 and 65, and 100 bucks will buy you a six pack and a gallon of gas.

It is time for the revolution. Call out the Libertarian militia before it is too late.
I am not kidding.

xx|2.10.09 @ 6:26PM|#

Here Here.
It's obvious the Big Bro doesn't care what we think. Put a Gadsden flag on your shoulder and go!

Naga Sadow|2.10.09 @ 6:29PM|#

Terry,

Sorry but I'm a sunshine patriot unless the apocalypse comes. Then I'll turn into your nightmare by taking on the mantle of warlord.

|2.10.09 @ 6:53PM|#

Hanging your constitutional hat on the Privileges and Immunities Clause is pretty much a concession that you don't have an argument that stands a prayer of actually winning.

Nordyke, with incorporation via the 14th, is the way to go, here. Trying to accomplish something via the P&I Clause is a pointless waste of time and money, as the courts have long held that it's generally not a source of substantive rights.

MNG|2.10.09 @ 6:55PM|#

So I'm one of the house liberals and I own guns and cheered the Heller decision. I'm sort of glad to see these very smart folks supporting the right to bear arms, but I am a bit concerned about this Priviliges and Immunities strategy. The Court has little chance of bringing this back, so it seems like a silly academic exercise or thought experiment on their part to me. Better to just say that whatever the hell incorporates the 1st, the 4th, etc. also incorporates the 2nd.

Local Yokel|2.10.09 @ 7:42PM|#

They commin' to git mah guns, Pa!

Syd|2.10.09 @ 8:10PM|#

MNG: The Privilege and Immunity clause (of the 14th Amendment) is one of the ways to incorporate an amendment. (Due process and equal protection are also.)

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Curious George|2.10.09 @ 9:47PM|#

Why is it that the Left distrusts their relatives, friends, coworkers, associates and family to the extent that they cannot be entrusted with guns. They allow criminals and Bill Ayers to obtain arms. They protect the rights of terrorists. Why is it they have no similar trust in their own families?

|2.11.09 @ 8:01AM|#

Officious Intermeddler | February 10, 2009, 6:53pm | #

Hanging your constitutional hat on the Privileges and Immunities Clause is pretty much a concession that you don't have an argument that stands a prayer of actually winning.

This decision, if not overturned by the supremes, has the potential to completely reverse the effects of Heller. Am I wrong?

Elemenope|2.11.09 @ 8:11AM|#

The Privilege and Immunity clause (of the 14th Amendment) is one of the ways to incorporate an amendment. (Due process and equal protection are also.)

You forgot to add "in theory". It's never actually been done, so far as I am aware.

This decision, if not overturned by the supremes, has the potential to completely reverse the effects of Heller. Am I wrong?

Honestly Heller was, in my mind, a one-step forward two-steps backwards sort of deal. It acknowledges that the right to bear is an individual right (yay!), but sets up a regulatory standard that all but allows Congress and subsidiary legislative entities the ability to do what they've always done with regard to guns (boo!), and made it harder to challenge gun laws on the "but it's an individual right, honestly!" basis (boo!).

waypasthadenough|2.11.09 @ 9:35AM|#

If the NRA was the organization it should be these black-robed shysters would not much longer waste the oxygen of our once free republic and we would already have the trained, armed and organized militia forces in place to do what MUST be done.

Don't understand? Start here:

http://willowtown.com/promo/quotes.htm

Then share and prepare.

|2.11.09 @ 9:36AM|#

"... the right to bear arms..."
OK, but who? Convicted felons?
OK, but where? On planes?
OK, but what arms? No one would seriously interpret this to include, say, a nuclear warhead, right?
So reasonable people will agree that the "right" in question should be limited... The state is the only possible enforcer of such limitation, via laws, passed under the system of checks and balances.
Rather than let this remain a black-or-white, "with us 'er again' us" argument (great for endless comment chains, but hardly effective debate) let's say there's a real question in today's society in America where to draw the line. Armor-piercing bullets - ban or allow? Rapid-fire machine guns - yes or no? Loaded handguns with no safety locks? Rocket-launchers? Grenades?
I'd draw the line barring anything that fires a bullet that can be concealed in normal clothing. That leaves hunting rifles, etc. legal. If the American citizenry needs to rise up & overthrow a government that has become corrupt, we can use them.

|2.11.09 @ 9:48AM|#

jebuff, there are police stations with tanks and armored vehicles. What's a hunting rifle going to do?

waypasthadenough|2.11.09 @ 9:51AM|#

jebuff: screaming idiots and "Liberal" scum like you are why Liberty is on its death bed.

You would agree that the jews who started killing german soldier in the warsaw ghetto with scrounged handguns, years after they should have, should have gone through a registration process with the Nazis.

Hope I get to see you in the midst of "Liberal" season.

|2.11.09 @ 10:23AM|#

OK, but who? Convicted felons?

Not if convicted of a violent crime. Many rights guaranteed to the citizenry are denied to convicted felons.

OK, but where? On planes?

Given the unique risks posed by firearms on airplanes, I would say no.

OK, but what arms?

Anything up to and including the standard infantry load-out, with the possible exception of hand grenades and other "area effect" weapons.

Alternative: anything the police can have, any citizen can have.

Was that so hard?

|2.11.09 @ 10:30AM|#

OK, but who? Convicted felons?
OK, but where? On planes?
OK, but what arms?

Ok but who: Everyone that hasn't committed a felony that involves violating the rights of another citizen.

OK but where:
Every where. Planes would be private property, so that would be up to the owner of the planes.

OK but what arms?:
At the bare minimum all arms that law enforcement are allowed to carry. All arms that the Federal, or local governments are allowed to use against citizens.

|2.11.09 @ 10:31AM|#

RC Dean, great minds think alike?

Or maybe, it is just common sense.

|2.11.09 @ 10:35AM|#

I'd draw the line barring anything that fires a bullet that can be concealed in normal clothing.

Hmmm, I am sure that others will draw the line on some of the things that you would like to do too. Some of the things that you think is necessary or vital to your freedom.

I mean if it is going to work like that. If others are going to draw the line on our freedoms.

Curious George|2.11.09 @ 10:36AM|#

JButt:

What a red herring. Exactly what is difficult to understand about the right to bear arms. Do you understand the 1st Amendment? Do you think the government should regulate your right to express opinions?

Leftwingnuts always use the government to limit freedoms and an effort to impose a socialist paradise.

Michael Z. Williamson|2.11.09 @ 12:53PM|#

Guns post no "unique" dangers aboard planes, any more than aboard a bus or in a public gathering. The ".22 hole will cause a plane to explosively decompress and fall out of the sky" hysteria is BS. The military uses the same airframes as the civil sector, and takes fire in them. That plane landed in Honolulu a few years back with half the roof missing. Until 1974ish (IIRC), it was completely legal to take guns aboard a plane. Let's bury that BS argument deep.

As to the "but you'd be allowing people to own nukes" straw man: So @#$ing what? If someone wants a nuke for terrorist purposes, they aren't going to ask. If Bill Gates wanted one, who'd be able to stop him? And apart from them, who's going to spend several million dollars on something they can't actually deliver anywhere?

If you're really worried that your neighbor might build a nuke in his basement to take out your block, but think some kind of law will stop him, you need serious amounts of therapy and entire handfuls of drugs.

Eric|2.11.09 @ 1:47PM|#

jebuff wrote:

"... the right to bear arms..."
OK, but who? Convicted felons?

Where in the amendment does it say (or anywhere else in the Constitution for that matter?) that conviction of a crime means you are no longer allowed to exercise your Constitutionally protected individual rights? Should a convicted felon be subject to unreasonable search without a warrant? That simple thought exercise will demonstrate how authoritarian you are.

My answer to "but who" is ..... read the amendment, then tell me if it says you can limit the right. You can't. Therefore, all citizens and residents of the United States have the right to keep and bear arms.

OK, but where? On planes?

Tell me where the Constitution says that our government has the authority to limit my right to keep and bear arms or my right to my personal property (the airplane I own), except through the takings clause. In other words, the owner of the private property (an individual right) can tell me that I cannot get on his plane with my gun. He cannot take my gun from me. And the Federal Government certainly has no such Constitutional authority by a strict reading of the Constitution.

OK, but what arms? No one would seriously interpret this to include, say, a nuclear warhead, right?

I would so interpret it IF a nuclear warhead is a reasonable militia weapon. Even more to the point, the amendment says nothing about what weapons I can "keep and bear", but it does say that my government cannot infringe on my right to "keep and bear" them. If I have the technical and financial means to acquire a nuclear weapon, I say I should be able to. If I use it to destroy your property and murder people then I should be subject to appropriate legal consequences for destruction of property and murder of other humans. Just like if I use a handgun to commit murder.

So reasonable people will agree that the "right" in question should be limited... The state is the only possible enforcer of such limitation, via laws, passed under the system of checks and balances.

I'm a very reasonable person, and I do not agree with you. Nor do I agree that it is a "right". The rights to life, liberty and property contains within them, by definition, the means to defend those rights. Including bearing arms. You would be a subject of the British Crown today had your forebears not exercised their right to keep and bear arms.

We, the people, are the final enforcer and arbiter of our rights. You and your authoritarian desires notwithstanding.

Mr. Right|2.11.09 @ 2:10PM|#

u guys are all extreme nerds. get a life. and then a gun so u can protect it.

|2.11.09 @ 2:17PM|#

"... the right to bear arms..."
OK, but who? Convicted felons?
If you've proven that you're a big enough threat that you can't be trusted with a weapon then they shouldn't be breathing/walking the streets.
OK, but where? On planes?
I'm pretty sure the world would be a radically different place today if passengers had been armed on 9/11.
OK, but what arms? No one would seriously interpret this to include, say, a nuclear warhead, right?
If you have the wherewithal to operate a nuclear device in a manner that doesn't infringe on anyone else's rights to life or the use/enjoyment of their property, then have at it. Party at your house, because apparently your backyard is 'uge.
...let's say there's a real question in today's society in America where to draw the line.
Only among people that don't understand the question.
Armor-piercing bullets - ban or allow?
Darn near every rifle caliber cartridge would be banned, because most of them go through soft armor like butter. Armor's nice and all, but kinetic energy's kinda awesome.
Rapid-fire machine guns - yes or no?
Since you can turn a legal semi auto rifle into a Deadly Machine of Deadly Full Auto Death with a piece of twine, really, what would be the point?
Loaded handguns with no safety locks?
First, the synonym for unloaded handgun is "paperweight". Second, unless you can provide a metric that demonstrates that the loss of function due to safety locks is compensated for by a quantifiable gain of X some other area, then you're asking for the sacrifice of freedom on blissninny based conjecture.
Rocket-launchers? Grenades?
Yes please.
I'd draw the line barring anything that fires a bullet that can be concealed in normal clothing. That leaves hunting rifles, etc. legal. If the American citizenry needs to rise up & overthrow a government that has become corrupt, we can use them.
I'd draw the line at the local sheriff realizing that the potential consequence of a botched no-knock raid in my neighborhood includes an artillery barrage, followed up with a ground assault on the police station to place the perpetrators under citizen's arrest.

But that's just me.

|2.11.09 @ 2:36PM|#

A literal reading of the Second Amendment protects only those weapons one can actually carry. That includes grenades, RPG's, and machine guns, but not nuclear warheads nor crew-served weapons.

For historical reasons, Merriam-Webster is my go-to source for definition of constitutional terminology. It defines "bear arms" as "possess or carry arms". Since "keep" means "retain in one's possession or power", "bear" here can only mean "carry". One can possess a nuclear weapon, but not carry it. The smallest known nuclear weapons are the size of a fridge. Suitcase nukes are an urban legend. Remember, the Second Amendment says "keep and bear", not "keep or bear". To my knowledge, no militia in US history, whether select or general, organized or unorganized, has ever used nor drilled with nuclear weapons. There is thus no historical precedent for allowing private ownership of them.

If this sort of legalistic parsing of words does not convince you, change the Constitution. I expect an amendment to ban private ownership of nuclear weapons would pass easily.

Re: airplanes, previous commenters are correct. A handgun or rifle round will not cause explosive decompression nor disintegration of the fuselage. They can cause gradual loss of air pressure, but all commercial flights are already equipped with air masks.

|2.11.09 @ 2:50PM|#

(OK, but what arms? No one would seriously interpret this to include, say, a nuclear warhead, right? )


machine guns grenade launchers nuclear weapons
liberals always screech the extreme when it comes to guns

give it up loser's a BOR confirms rights that existed long before jerk wad libbers walked the earth

|2.11.09 @ 2:54PM|#

Where in the amendment does it say (or anywhere else in the Constitution for that matter?) that conviction of a crime means you are no longer allowed to exercise your Constitutionally protected individual rights? - Eric

I'm thinking, right here:

No person shall....be deprived of life, liberty, or property, without due process of law - United States Constitution, Amendment V

Now, if Person X is convicted, with due process, he is subject to deprivation of one or more of his civil rights, as the relevant statues describe. Convicts can be disarmed, barred from public office, barred from voting, etc., for the length of their prison sentence, probation and/or parole. In some states such limitations can continue for life. Whether such disabilities should be permanent, long or short-term, or exist at all can be debated, but the prohibition against restricting liberty without due process has not been interpreted as preventing such limits when due process has been met.

Should a convicted felon be subject to unreasonable search without a warrant? - more Eric

Maybe not, but those on probation or parole have to put up with such searches, or risk having to serve their full or suspended sentences.

That's the reality. For myself, I'd restore political rights to felons who are "off paper," and wouldn't bar non-violent ex-offenders from the use of arms once they completed their sentences.

Kevin

|2.11.09 @ 3:08PM|#

Glad to have helped the debate along. Y'all make me laugh. The guys who need the biggest guns to compensate for their tiny... whatevers, are usually those with the least real courage to actually engage in more than jaw, and work out differences. In any case, given the range of opinions expressed in response to my post, I'd say those of us that believe in some sort of gun control have nothing to worry about... You guys just go away and fight out your differences... reckon the far-out fringe, the most violent guy with the biggest gun (or nuclear warhead) will win amongst you, and his opinion will be the most easily defeated by reasonable people. Have fun.

|2.11.09 @ 3:08PM|#

the prohibition against restricting liberty without due process has not been interpreted as preventing such limits when due process has been met.

Well, I would tend to argue that it does not say you can be deprived of constitutionally guaranteed rights. The things you explicitly mention are not, with the exception of disarmed, constitutional rights. Are you suggesting that the constitution allows a convicted felon who is no longer serving an actual criminal sentence to be stripped of their rights under the first amendment (free speech, freedom of religion), for example? And if they would retain those rights but not their 2nd amendment rights, please justify. Either constitutional rights are rights, not subject to infringing, or they are privileges.

As far as nuclear weapons and militias, the Air National Guard is trained to deliver nuclear weapons (i.e. they drill with them). That should suffice to answer the question of whether I should be able to keep a nuclear weapon ..... or an F-15, for that matter ..... in a purely legalistic, word for word reading of the amendment.

|2.11.09 @ 3:14PM|#

The guys who need the biggest guns to compensate for their tiny... whatevers, are usually those with the least real courage to actually engage in more than jaw, and work out differences.

Since you enjoy going to the extremes (i.e. immediately bringing up nuclear weapons), so will I. Enjoy working out the differences from the Gulag.

|2.11.09 @ 3:45PM|#

Are you suggesting that the constitution allows a convicted felon who is no longer serving an actual criminal sentence to be stripped of their rights under the first amendment (free speech, freedom of religion), for example? And if they would retain those rights but not their 2nd amendment rights, please justify. Either constitutional rights are rights, not subject to infringing, or they are privileges. - Eric

Probationers and parolees do, in fact, have various freedoms restricted besides the freedom to keep and bear arms - notably, freedom of association. Here are some examples. Offender X is on probation for DUI, and may not imbibe alcohol or frequent taverns. Offender Y was convicted of messing around with minors. He can't have any contact with minors, or any unsupervised contact.

Heck, the Thirteenth Amendment allows slavery, but only as a due process-approved punishment.

Kevin

|2.11.09 @ 4:05PM|#

The guys who need the biggest guns to compensate for their tiny... whatevers

There should be some kind of Godwin's Law for gun control discussions. You can always count on a gun controller speculating on the equipment of the opposition, no?

Are you suggesting that the constitution allows a convicted felon who is no longer serving an actual criminal sentence to be stripped of their rights under the first amendment (free speech, freedom of religion), for example?

Actually, I think it does. There is no requirement that deprivation of rights occur only in connection with incarceration. There is a requirement that it be done after due process.

I think there is a good argument that any deprivation of rights be done as part of an individualized sentence, rather than as a blanket statute, though.

ATLien|2.11.09 @ 5:20PM|#

My gun isn't compensation for a small "member". It's compensation for the fact that i can't throw a rock 1000+ feet per second.

EscapedWestOfTheBigMuddy|2.11.09 @ 8:27PM|#

where to draw the line

The absolute, uncontestable, minimum standard:

All civilians not found to be incompetent may keep and bear the same type and categories of arms and armor.

And the police---all the police, be they state local or federal---are civilians.

Negotiation about what portion of an infantry troopers kit are allowed are still underway.