On Second Amendment Absolutism - Liberal Resistance

On Second Amendment Absolutism

William B. Turner

We are currently embroiled in yet another flare up of the long running argument over the correct understanding of the Second Amendment to the United States Constitution. It is well to have the entire Amendment – it’s short – to look at for reference:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This is complicated, much as the extremists at the NRA and their gun nut supporters would like to simplify it. As with all such things, historical context is critical. The first ten amendments were a compromise advocates of ratifying the Constitution struck with its opponents, who feared the new government would become too powerful (!). The advocates agreed to what we now call the “bill of rights” as a series of statements expressly limiting the power of the new government to win over the opponents.

But the motivation behind the writing of the Constitution was the perception among many early national leaders that the previous plan of government, the Articles of Confederation, created a national government that was too weak to get the job done and that the new republic was in danger of flying apart at the seams. In particular, George Washington and James Madison were horrified at Shays’ Rebellion, which broke out in western Massachusetts, when Daniel Shays, a former Revolutionary War officer, led a group to shut down the local courts to stop foreclosures of farms. Kind of the Clive Bundy of the 1780s. Several of the men who participated suffered execution. Shays himself escaped and Washington later endorsed commuting his sentence, thus sparing him execution.

But, as with all things relating to the Constitution, the goal is a balance – a government that is strong enough, but not too strong.

A common claim by Second Amendment absolutists – people who take the position that the Amendment means they have the right to own any weapon they want to own – is that they may need their semi-automatic assault rifle to defend themselves and their families in the event of an attack by federal officers. This is rank flummery for multiple reasons.

First, the Branch Davidian Rule. Look up “Waco Standoff.” After 51 days, the FBI sent in a tank to attack the compound belonging to Christian nut job David Koresh, who first came to the attention of federal authorities because they suspected he was manufacturing weapons illegally inside his compound. He had more weapons at home than most people can dream of. He ended up dead. No matter how many rifles you have at home, the feds will always have more and bigger. That was true during the Waco standoff in the 1990s. It’s even more true now, thanks to the Republicans and their “war on terror.” Several of the persons who survived the siege at Waco ended up with long prison terms, several of which the Supreme Court would reduce on grounds that the judge had exercised unlawful authority in deciding those sentences – in short, independent judges, as the Constitution provides, and as good “conservatives” – who are also often gun nuts – often whine about — are better protection for the rights of citizens than any rifle will ever be.

Second, as Shay’s Rebellion indicates, the line between heroic revolutionary and dangerous nutjob is a very fine one, depending in part on the amount of support one can engender from the general public. It is not at all clear that a majority of American colonists supported the Revolutionary War. Many famers took the side of whichever army happened to be closest at any given moment. The men who led the Revolution were sufficiently influential that they managed to pull it off. So far, the Second Amendment absolutists have the weight of history and existing law on their side, which makes up for their complete lack of influential spokesmodels.

Then there is the much vexed question of interpreting any statement of rights. No right is absolute. If one were to identify a right that perhaps should be absolute, and that the Supreme Court has come closest to protecting as absolute, it would be the right to free expression in the First Amendment. Ask any Second Amendment absolutist if he (likely a he) would give up the First Amendment to protect the Second, or vice versa, if that were the choice. That is obviously nonsense. The First Amendment must take precedence over the Second Amendment, conceptually as well as how they appear in the Constitution.  We regard the freedom of expression in the First Amendment as critical to the way we do politics in the United States. Lots of people wondered if Barack Obama would sue Donald Trump for the various stupid, scurrilous things Trump said about him. The answer is, no, he won’t, because he knows that the Supreme Court has explicitly held that the need to allow for freedom of political speech means that libel suits by public figures, which Obama undoubtedly now very much is, should be nearly impossible as a legal question. If you run for public office or holds public office, anyone can say just about anything s/he wants about you and you will have no legal recourse.

Try to transfer that idea to the Second Amendment. We usually, and quite reasonably, I think, try to conduct our political debates without using guns at all. Various persons showed up with guns at the recent marches that students organized in response to the Parkland school shooting and they looked like idiots. There was no need to have a gun at any of those marches. Those persons made no intelligible political point or argument with their puerile displays of fire power. Had they fired their guns – the only real use of a gun – law enforcement officers would have arrested them or killed them. When we use guns in politics, we call that either assassination – as in the deaths of Abraham Lincoln, William McKinley, and John F. Kennedy, to name only the most famous – or war, which is the failure of politics.

But even as close as the Supreme Court has come to finding the right to free expression to be absolute, it is not. The Court will allow government to impose what they call “time, place, and manner” restrictions on free expression, if government can show a compelling interest, the restrictions are narrowly tailored, and the speakers have ample other means to express themselves. An example of this that is so obvious we don’t think about it is public universities. Any property a public university owns is, by definition, public. Public property is usually fair game for free expression, by definition. You may protest freely on pretty much any sidewalk you like any time you like. But allowing unrestricted free expression inside university classrooms would bring education there to a halt. So the Supreme Court would allow, if such a case came before it, state officials to arrest and penalize anyone who disrupts a class at a public university. Education is a compelling state interest, the restrictions can be tailored narrowly, and the speaker has plenty of other options – go outside.

There is no good reason at all not to adopt essentially the same set of rules for restrictions on ownership of firearms that we already use for restrictions on free expression, suitably modified to allow for obvious differences in the two activities.  Only the most bloody minded ideologues could dispute this logic.

So the absolutist reading of the Second Amendment is ridiculous on its face, and no right is absolute.