Supreme Court

The Libertarian Connection Between Gay Rights and Gun Rights

|

The U.S. Supreme Court helped reshape American politics over the last 10 years by tackling two of the most divisive issues of our time. First, in Lawrence v. Texas (2003), the Court handed the gay rights movement a major victory by striking down that state's sodomy ban for violating the right to liberty protected by the 14th Amendment. Five years later, in District of Columbia v. Heller (2008), the Court handed a similar victory to the gun rights movement when it nullified Washington, D.C.'s handgun ban for violating the individual right to keep and bear arms protected by the Second Amendment.

Writing recently at the New York Daily News, Yale law professor Akhil Reed Amar attempts to draw a connection between the two cases, arguing that liberals might advance their current gun control agenda by taking seriously the Court's ruling in Heller while conservatives might strengthen their own claims by embracing the Court's reasoning in Lawrence. "Conservative justices could end up helping today's political liberals," Amar contends, "and liberal justices may have given today's conservatives additional ammunition."

It's an interesting argument. Unfortunately, Amar fails to consider the most obvious connection between the two rulings: their libertarianism. Lawrence and Heller each represent a major victory for the libertarian approach, with individual liberty triumphing over intrusive government in both cases.

Indeed, upon close examination, the two rulings even turn out to share some of the same libertarian DNA. In his majority opinion in Lawrence, for example, Justice Anthony Kennedy repeatedly cited the arguments made in a friend of the court brief submitted by the libertarian Cato Institute. "America's founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations," the Cato brief observed. "A law authorizing the police to intrude into one's intimate consensual relations is at war with this precept and should be invalidated." And so it was.

Several years later, Robert Levy, one of the Cato legal scholars who worked on the Lawrence brief, spearheaded the legal challenge that ultimately brought down D.C.'s gun ban in Heller. As Brian Doherty reported in Reason's December 2008 issue, "prodded on by suggestions from a young lawyer named Clark Neily from the libertarian public interest law firm the Institute for Justice, Robert Levy assembled a team that included his Cato colleague Gene Healy (who dropped out before the case reached the Supreme Court), Neily himself, and the private-practice attorney who eventually argued the case in front of the Court, a Virginia libertarian named Alan Gura."

Professor Amar is surely correct that both liberals and conservatives still have much to learn from the Supreme Court's recent decisions in favor of gay rights and gun rights. The best way to jump start their educations is by studying the key role libertarian ideas played in the two landmark victories.

NEXT: Obama Signs Defense Bill

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The right to bear arms and the right to bare arms spring from the same principle.

    1. You also have a pair of bear arms hanging on your wall? Mine are from a Grizzly.

  2. Well they’re not on equal footing. Heller is recognizing one half of a clearly expressed individual right that’s right there in black and white in the text of the Bill of Rights. Whereas Lawrence squints the right to privacy out of the 9th amendment Rorschach test.

    1. Are you saying that the 2nd amendment confers more powerful rights than the 9th? Really?

      It’s not a Rorschach test. The Ninth says in black and white (well, black and beige now, that document is pretty old) that Congress only has the enumerated powers, and not a damn thing else (paraphrasing).

      1. If you’re a Web junkie with lots of patience, go back a few weeks and read Tulpa’s Constitutional arguments in the various threads about guns and borders around that time, and you’ll see that he doesn’t give a crap.

      2. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        I don’t see anything in any color corresponding to your claim.

        And of course, Lawrence didn’t involve Comgress’ laws anyway.

    2. Heller was a ridiculous ideology-driven decision. The 2nd Amendment says nothing about an individual right in black and white, and rather clearly places the right in a martial context. How that’s relevant to today is open to debate, but it probably just isn’t that relevant.

      Granted, Lawrence is not constitutionally black and white either, but unlike the blind, deaf ideological absolutism that results in maximum gun proliferation, at least it’s a good decision outcome-wise.

      1. The 2nd Amendment says nothing about an individual right in black and white,

        Neither does the First Amendment, with the possible exception of the right to assemble. And it uses the same word (“people”) as the Second Amendment.

        The Fourth also refers to “people”, as does the Ninth.

        If people is used solely as a collective noun in the BOR, then a fair chunk of it doesn’t guarantee any individual rights at all.

      2. It’s difficult to form militias in the resistance of tyranny when individuals are not allowed to arm themselves.

        1. In Tony’s universe, individuals are pixels — they only matter when they’re in large enough groups to form a picture his retarded mind likes.

        2. It should go without saying that the 2nd Amendment absolutely does not sanction a right to armed insurrection against the legitimate government of the US. It was about the right of people to defend their states with well-trained militias, in an era where standing national armies with 21st century firepower were unknown.

          1. Re: Tony,

            It should go without saying that the 2nd Amendment absolutely does not sanction a right to armed insurrection against the legitimate government of the US.

            It doesn’t need to. That’s what the 9th Amendment already implies.

            It was about the right of people to defend their states with well-trained militias, in an era where standing national armies with 21st century firepower were unknown.

            You misunderstand. The STATED PURPOSE of the 2nd Amendment was to protect people’s right to bear arms so they could drill and learn to shoot – that is what the expression “well-regulated militia” means. The right to bear arms already existed and really didn’t need special protection, but it was placed there anyway as a compromise, as extra-insurance, as most States did not want to ratify the Constitution unless guarantees to their sovereignty were established, hence the 2nd Amendment, the 9th and the 10th.

            Thus the preamble of the 2nd Amendment does not say or mean that only militias are to keep weapons, it means “And precisely because people need to be able to drill and shoot in order to better defend their State, we place this protection to the right of the people to keep and carry weapons.”

          2. It should go without saying that the 2nd Amendment absolutely does not sanction a right to armed insurrection against the legitimate government of the US.

            The flaw in that statement is that no government is ever going to declare itself illegitimate.

      3. Re: Tony,

        The 2nd Amendment says nothing about an individual right in black and white,

        Even if that was true (despite the fact that it says “the right of the PEOPLE to bear arms shall not be infringed” in black and white and in ENGLISH), the fact is that the right to possess a weapon stems directly from our right to possess property, even that property that helps us to defend our own selves against attacks.

        The 2nd Amendment is simply protecting a right that already exists, just as is the case with the 1st Amendment.

        Granted, Lawrence is not constitutionally black and white either, but unlike the blind, deaf ideological absolutism that results in maximum gun proliferation, at least it’s a good decision outcome-wise.

        Because you agree with it. That’s as far as your intellectual honesty will go, it seems.

        1. Yeah. When it comes down to it the constitution means what 5 people in black robes say it means. So hoping for my preferred outcomes is really the only intellectually honest way to go.

          1. Re: Tony,

            Yeah. When it comes down to it the constitution means what 5 people in black robes say it means.

            Which doesn’t seem to disagree witn you then the outcome is to your liking, or does it?

            Again, such is the extension of your intellectual honesty.

            So hoping for my preferred outcomes is really the only intellectually honest way to go.

            No, it is not. It is principled argumentation which establishes your intellectual honesty. For me, a decision that defers to individual freedom is preferable regardless if it means more guns or more gay marriage or more pot smoking or even more SuperPACS. YOU, on the other hand, will only look at those decisions that provide satisfaction on a limited range of likable outcomes, with contempt for those other decisions that further individual liberty but do not agree with you.

            1. Individual liberty is a touchstone for me too, I just define it more meaningfully than you do. You are a radical individualist. I believe in individual people having freedom. There’s quite a difference.

              1. No, you don’t you disingenuous fuckwad!

        2. ..directly from our right to possess property,

          Don’t and the right to defend oneself against aggression.

      4. “I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
        ? George Mason, in Debates in Virginia Convention on
        Ratification of the Constitution, Elliot

  3. “Five years later, in District of Columbia v. Heller (2008), the Court handed a similar victory to the gun rights movement when it nullified Washington, D.C.’s handgun ban for violating the individual right to keep and bear arms protected by the Second Amendment.”

    People seem prone to forget that the ruling only disallowed outright prohibition — constraints upon the ownership and carry of firearms were expressly endorsed by the Supreme Court.

    Our victory in the matter is fantastically incomplete. When Illinois decides to tax ammunition at seventeen septillion dollars per round, expect the Supreme Court not to give a shit.

    1. Or they could simply offer a tax credit to those who store no guns in their home. Claiming the credit would give the tax authorities the ability to audit the home for the presence of firearms. This would seem to be in line with recent Supreme Court rulings.

      1. In line? That’s not even a necessity anymore. The public is so heartbreakingly passive, they could rule in any way they wanted to, and most people wouldn’t care.

      2. That’s not going to work any more than offering a tax credit to Catholics would work.

        1. The IRS allows Catholics to write off their tithes, don’t they?

          I would call the credit the “Safe Home for Children Credit”. It would acknowledge the public health risks associated with private gun ownership. Tax rates would have to be raised to punitive levels, but anybody would be able to avoid them by maintaining a safe home for children.

    2. Thank you, RPA. Heller was a victory only in the sense that it could have been worse, but it still enshrines yet another de facto amendment of the Constitution by SCOTUS.

      The 2A now reads “the RKBA shall not be unreasonably infringed.” The gloss is that what constitutes a reasonable infringement is largely determined by our democratic processes, under the SCOTUS doctrine of extreme deference to the legislature.

      1. This is why these rights were written as such, because leaving them to the discretion of a small committee of nine or a mob is fucking retarded. Welcome to the modern world, where “shall not be infringed” means whatever the shit your slavemaking neighbors want it to mean.

        1. When they were written they only applied to the federal government.

      2. So you think that mentally ill people and violent felons should be allowed to purchase firearms?

        1. Yes. Next question.

        2. Re: Tulpa,

          So you think that mentally ill people and violent felons should be allowed to purchase firearms?

          Of course they should. What they should NOT be allowed is to use them to commit crimes, which is what armed self-defense is for.

          1. Armed self defense is a good thing, but it’s not the panacea that some libertarians think it is. Other than going to my job or someplace else that forbids guns, I’m armed everywhere I go, but have no illusions about my survival likelihood if a bunch of schizoids with ARs walk in and start pumping lead.

          2. Taking guns away from “schizoids” and felons isn’t a panacea either.

        3. So long as they have been given due process and adjudicated as such, then I don’t think its a violation of their Constitutional rights to bar them from owning guns.

          I mean, isn’t that what we do before we lock them up, fine them, or otherwise deprive them of their rights? Why should it be different here?

          This really isn’t that hard.

          1. OK, this is a novel argument, framing the permanent loss of 2nd amendment rights as part of the sentence for the crime. Props for thinking outside the box.

  4. The mask slips:

    http://www.foxnews.com/politic…..-warns-no/

    One measure would ban the possession, delivery, sale and transfer of semiautomatic handguns and rifles. People who currently own such weapons could keep them but would have to register them. The bill would allow semiautomatic weapons to be used at shooting ranges, but those facilities would be regulated.

    National Rifle Association lobbyist Todd Vandermyde told lawmakers the bill would restrict about 75 percent of handguns and 50 percent of long guns in circulation today.

    One thing to remember: prohibiting transfer is slow-motion confiscation, because it means you can’t sell, give, or bequeath in your will any firearms. You can keep them until you die, and then the state seizes them.

    1. Stop bathing in the blood of innocent little children, Dean. Why do you want black assault-bullet-hurling death destructo death machines to plague our society?

      1. But he was reelected by a majority and promised to help the (American)children with all of his political capitol.

        Oh wait, you meant the OTHER black death machine. Well inanimate objects pretty much just sit there and I need some paperweights.

      2. Your comment is so over the top rotten it reeks. A good ass kicking would probably teach you to watch your mouth.

    2. As I said before, the smoothest way for the gun banners to try to work their magic is to use the existing NFA framework. The law’s in place, and it’s easier to create new categories of firearms in the NFA than it is to write a whole new ban. This is exactly what Feinstein’s proposal attempts.

    3. So what you’re telling me is that my state income taxes went up two percentage points to help pay for the inevitable court costs when a piece of shit like that gets overturned. Love U, IL!

    4. and this is why you don’t register

    5. Doesn’t Illinois already require you to register guns to get a FOAD card?

  5. There is really very little in common between Lawrence and Heller, a friend of the court brief and lawyerly employment notwithstanding.

    Lawrence was bad law to get the right result, whereas Heller corrected years of flawed decisions

Please to post comments

Comments are closed.