You've Come a Long Way, Baby

Brian Doherty's piece on the constitutional right to keep and bear arms ("You've Come A Long Way, Baby," October) left me in a quandary. I cannot find the principle that makes owning a pistol a right yet makes it illegal to possess a hydrogen bomb. But if the "right to keep and bear arms" is truly a right, I can no sooner accept government control over the types and quantities of arms than I could accept government control over the types and quantities of speech.

The practical answer is given by Ayn Rand: that as long we have a legitimately constituted government, we must cede our individual rights to these more powerful and dangerous weapons to the government on our behalf. This does not mean disarming the citizenry. It means allowing the government, within the moral context of the right to keep and bear arms, to regulate the ownership and use of those weapons that cannot be justified for personal defense. As long as the government remains fundamentally legitimate, our citizens should be well served this way. 

Michael L. Carp

Montclair, NJ

Your October cover said "The Second Amendment finally becomes a civil right." It has been a civil right all along. Nothing at all has changed in the verbiage of the constitutional right itself. It is only now being recognized by the Supreme Court.

Derek Balling

Hurley, NY

Confirmation Theater

In "Confirmation Theater" (October), Radley Balko bemoans the fact that he cannot draw conclusions about Elena Kagan's legal views based on the positions she took as solicitor general. But if representing the government's position in favor of extraordinary rendition can be ascribed to Kagan as her own view, then should we conclude that criminal defense attorneys are pro-crime?

Balko also scoffs at Supreme Court candidates' frequent refusal to comment on issues they might have to rule on. Here in the United States, the Supreme Court does not offer advisory opinions, so why compel its candidates to do so? Federal courts in the United States only decide actual cases or controversies. Issuing advisory opinions violates Article III of the Constitution, as Chief Justice John Jay once explained to President George Washington.

Observers might think the Court is pro-this or anti-that, but the Court rules only upon actual cases, in light of concrete facts, applicable laws, and the then-existing split among appeals courts. These real cases typically represent "edge" cases—cases that push the boundaries of currently accepted rules. This is why, for example, a justice who is generally thought to be in favor of gun control might join or even write an opinion that strikes down certain limits on gun ownership. When that happens, those who agree with Balko in calling for more substantive answers from judicial candidates might well call for impeachment hearings on the basis that the justice previously lied to Congress.

Wayne Bennett

Boston, MA

CORRECTION: "You've Come a Long Way Baby" (October) stated Chicago residents will now have to pay a $100 permit fee every three years for every gun they own. In fact, that fee covers all the guns a resident might own, though a $15 registration fee is also due for each individual gun owned.