If Andrew Cohen were defending the entire Bill of Rights, his Atlantic article on how that hallowed document has been shredded beyond recognition these past 11 years would be terrific. But sadly, the thesis underlining his no-doubt Aurora, Colorado-shooting inspired piece on how "Some Constitutional Amendments Are More Equal Than Others" seems to be, we've mostly violated amendments First and Third through Eighth, but why are things so good for the Second Amendment these days? And it's no thank goodness for small, libertarian favors, it's more an implicit pleading for at least some equality in rights violating.
From the TSA to drones to warrantless domestic surveillance, from water-boarding to secret prisons to law enforcement officials having access to your online accounts, the Bill of Rights has been winnowed since September 2001 as Americans have consented to re-shift the balance between security and liberty, between safety and privacy. Name a relevant amendment and some expert somewhere will tell you how all three branches of government have sought to expand State power over individual conduct (or even, as we saw in some of the hokier terror conspiracy cases, over individual thought).
Except for the Second Amendment. Bucking the trend, it has been a fabulous decade for the Second Amendment and those who cherish it. Since September 2001, the United States Supreme Court has twice (in Heller in 2008 and in McDonald in 2009) endorsed the concept that the Second Amendment contains an individual right to bear arms. In 2003, Congress attached to funding legislation the Tiahrt Amendment, a rider designed to restrict the use of federal gun-trace information. And in 2004, the federal ban on assault weapons was allowed to expired.
Cohen makes some excellent points about the war on terror's effects on the First, Fourth, Fifth, Sixth, and Eighth amendments. He also notes that the Third Amendment (you know, the joke-ish one about soldiers not being quartered in homes in peacetime) was violated during Hurricane Katrina. He thinks the Ninth Amendment has mostly been untouched by the War on Terror, at least in terms of court rulings that directly chip away at it, but you would not be hard pressed to find a violation of the sentiments behind "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Cohen also ignores that the ravishing of the Fourth Amendment really began in earnest with the war on drugs.
Now, the 10th Amendment, not exactly the left's favorite, Cohen brushes aside with "Tenth Amendment activists have claimed that the government's terror detention policies, contained in the National Defense Authorization Act, implicate state powers under the Tenth Amendment. But there has been little litigation on this topic." Cohen's real point is the afore-quoted — the fact that support for gun control has been mostly dropping since the early 90s, culminating in Supreme Court decisions which upheld an individual right to bear arms. This is clearly not something that Cohen supports, and he ends his piece with not a full-on cry for stricter gun laws like some liberal commentators have post-Aurora, (and of course, these commentators are aghast at how gun control has fallen out of favor as a Democrat rabble-rousing issue) but with a plea for putting the rights in the Second Amendment up for a debate as well. Writes Cohen:
Are Second Amendment rights more precious than Fourth Amendment rights or Fifth Amendment rights? Are they more important than First Amendment rights or Eighth Amendment rights? I'd love the president and Mitt Romney to answer those questions and to explain why the War on Terror seems to have bypassed the Second Amendment even as ithas redefined the ways that many other constitutional amendments apply to our lives.
I hate to look the gift of righteous critiques of the War on Terror in the mouth, but this is such a fundamentally backwards way of looking at this question. Cohen may be for increased civil liberties in many ways, but he is phrasing it as if he's more interested in equality of oppression than in rehibilationg the U.S.'s less healthy amendments. This is further confirmed with what he wrote on July 21:
Since September 11, 2001, we have had not one but two United States Supreme Court rulings recognizing an individual constitutional right to bear arms. Both of these rulings, crafted by the Court's conservative majority, were nonetheless careful to contemplate the possibility of reasonable gun regulation. But that assumes the political will to enact and implement such regulation– and also to enforce existing gun regulations in an efficient and aggressive way. How many lives would be spared if law enforcement officials enforced existing gun laws as aggressively as they pursue the war on terror? We'll never know the answer to that question, will we. Such enforcement will never happen.