2nd Amendment

The One Civil Liberty Trump Likes and Clinton Hates

The billionaire blabbermouth is right about his Democratic opponent's hostility to gun rights.



Amid the furor caused by Donald Trump's offhand joke/threat/exhortation about what "Second Amendment people" might do if Hillary Clinton is elected president and gets to pick a replacement for the late Supreme Court Justice Antonin Scalia, it was easy to miss the way he qualified his oft-repeated warning about his Democratic opponent's hostility to gun rights. Trump had previously accused Clinton of wanting to "abolish" the Second Amendment, leading some literal-minded observers to point out that 1) she has never said such a thing and 2) the president does not have the power to edit the Constitution in any case. In his speech on Tuesday, perhaps mindful of that criticism, Trump said, "Hillary wants to abolish—essentially abolish—the Second Amendment."

Trump's point, of course, is that the power to replace Scalia with a justice who takes a different view of the Second Amendment is the power to eliminate that guarantee as an obstacle to gun control, either by overturning District of Columbia v. Heller, the 2008 ruling in which the Supreme Court recognized a constitutional right to armed self-defense, or by reading the decision so narrowly that it has no practical effect. Trump is no one's idea of an expert on constitutional law, but the point he is making seems indisputable to me, although you would not guess that from reading The New York Times.

According to an editorial in Wednesday's paper, Trump "falsely charged, as he has before, that 'Hillary wants to abolish, essentially abolish, the Second Amendment.'" The next day, the Times reported that "Mr. Trump is accusing Mrs. Clinton, without evidence, of intending to abolish the Second Amendment—something that she denies and would be constitutionally unable to do as president." Another recent news story said Clinton has merely "spoken critically of judicial decisions that take a broad interpretation of the right to own guns."

The truth is that Clinton believes Heller was "wrongly decided," which means she does not think the Second Amendment guarantees a right to use guns for self-defense in the home, since the law overturned in that case made it impossible to exercise that right. In fact, as I pointed out in my column last week, it is pretty clear Clinton does not believe the Second Amendment guarantees any sort of individual right to arms. She repeatedly dodged that question in an ABC News interview last June, saying only that "if it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulation." The decision to excise the Second Amendment from this year's Democratic platform—the platform on which Clinton is running—reinforced the impression that she not only does not value the constitutional right to armed self-defense but does not think it exists. So does the absence of any statement to the contrary from Clinton on her campaign website.

Trump and Clinton both have strong authoritarian instincts and are generally bad on civil liberties. This is one of the few areas where Trump clearly and consistently disagrees with Clinton and is right to do so. His newfound, politically convenient enthusiasm for the Second Amendment may or may not be sincere, and it's not clear what sort of justices he would actually nominate. But it seems certain that Clinton would appoint justices who agree with her that Heller was wrongly decided, which would indeed "essentially abolish" the Second Amendment, even if there would still be political obstacles to gun control. Whether that's enough reason to prefer Trump over Clinton is another question.