Within seconds of the Umpqua Community College killings, the same calls rang out for gun control under the mantra, “this must stop.” Jess Gabel Cino asked whether we can finally stop the debating, a rhetorical question if ever there was one. Across the nation, people manned their usual battle stations for the same fight that follows every tragedy involving guns, but particularly mass school shootings.
As a New Yorker, I have the typical city slicker’s distaste for guns. I don’t have one. I don’t want one. I am not a fan of guns. No need to explain why I’m wrong. It’s my choice, and, unlike so many people on so many issues, I do not fancy myself the arbiter of right and wrong for everyone else. Indeed, the arguments over guns have been enunciated ad nauseam. The battle lines are as clearly drawn as they could possibly be.
But when I expressed a sentiment that, whether those of us who have no desire to hold cold steel in our hands like it or not, the Supreme Court has held the right to keep and bear arms is a fundamental individual right in D.C. v. Heller, the backlash surprised me. I was immediately “unfollowed” on the twitters by a big bunch of people who deeply favor some constitutional rights and deeply hate others.
This has become the nature of people’s acceptance and rejection of personal freedom, of constitutional rights. As if they can pick and choose which ones are worthy of respect based on their personal feelings, and demand that society honor those they prefer and reject those they don’t.
The Bill of Rights is under assault from all corners of American society. Except one group loves certain rights and another group loves certain other rights. As a gross explanation, it appears that the First and Second Amendment seem to be the preferred rights of conservatives, while the Fourth, Fifth, Sixth and Eighth are more appreciated by liberals. And conversely, each group tends to dislike, if not hate, the rights the other extols.
While the First gets some love from Gertrude by progressives, it’s only because they feel entitled to reinvent it as a fantasy right that protects them and shuts everyone with whom they disagree down. Their Gertruding nothwithstanding, they really don’t think well of free speech at all.
When did Americans decide that the Bill of Rights is up for popular vote on a daily basis? When did Americans decide that they can advocate for laws and limitations that facially conflict with the Constitution because, well, they really, really don’t like some of them?
And why hasn’t it occurred to these very passionate people that when they shout out their righteous calls to pick apart the Bill of Rights based upon their personal preferences, their adversaries are doing the same, just with a different bunch of rights?
Here’s a harsh truth: most law-abiding Americans think the Fourth Amendment is a terrible idea, and it serves only to let dangerous criminals loose on a technicality and prevent the government from keeping us safe from terrorists. Of course, I don’t see it that way at all, and I’m quite certain most Americans are wrong about that and just don’t get it. So why is my certainty about the Fourth more correct than the majority of Americans who disagree?
It’s not. There is only one thing going for the minority of people who agree with me that the Fourth Amendment is a really good thing: it’s right there in the Bill of Rights. Hey, it doesn’t matter if everyone else in America but me thinks the Fourth Amendment sucks. As long as it’s in the Constitution, I win. And you win, even if you don’t think so.
Which brings us back the to Second Amendment’s right to keep and bear arms. Like most people of my generation, and lawyers in particular, it was understood to refer to a militia rather than an individual right up until the moment the Supreme Court told us otherwise in Heller. Never having been particularly concerned with that right, I have no scholarly background in it, and no basis to assert that the Court was right or wrong. I leave that to others, most notably my pal, Alan Gura.
You can disagree with Alan all you want, but he did something most of us thought impossible, reversing the meaning of the Second Amendment that was so deeply embedded in our American psyche that it seems inconceivable. Yet he did it. That may be some of the best lawyering ever.
So we’re now saddled as a nation with an interpretation of the Second Amendment with which many of us disagree, or worse, don’t care. We know how much we dislike guns, and how much better off we believe we would be with pervasive gun control. But it’s irrelevant. That’s not the law. That’s not the interpretation of the Second Amendment. That’s not what the Bill of Rights protects, regardless of whether you like it or hate it.
The Constitution, and its Bill of Rights, is a package deal. Either we accept them as the fundamental law of the land, the protection of individual freedoms from governmental impairment, or not. There is no legitimate argument that some rights are more worthy of respect than others. There is no valid contention that we need only respect the rights we like and can dismiss those we don’t.
If you think the Second Amendment can be ignored because you hate guns, then you have no cause to complain that the majority of Americans would like to dismiss the Fourth Amendment’s warrant clause because they prefer their safety. And the Free Speech of everyone is subject to the feelings of the most sensitive person in the country. Either we respect every one of the Bill of Rights or none of them deserve to be honored.
If you’re a supporter of the Constitution, then support all of it, even those Amendments that aren’t your favorites. If not, then remember that your favorite rights are no more sacred than anyone else’s. When they come for your favorites, remember that you enabled the position that rights are subject to public whim, your whim, based on individual sensitivity. Pick a side. Either you’re for the Constitution or you’re not. There is no middle ground.
” … right to keep and bear arms. Like most people of my generation, and lawyers in particular, it was understood to refer to a militia rather than an individual right …”
You probably should change the word “people” to “city-dwellers” or “New Yorkers” or something like that. I came of age in the 1950’s in rural America, and the idea that RKBA was anything other than an individual right would have seemed bizarre to just about everybody.
Personal anecdote: My father was born in 1903. When he turned 14, he dropped out of school and got a job as a security guard. The job required that he have his own revolver, so he just went down to the nearest hardware store and bought one — no big deal. (I still have it, and it still works.) I offer that as an example of how much personal freedom Americans have lost in just two generations.
I was going to ignore it because it wasn’t central to his point. But I have to agree with you. Its a very “New Yorker” position. Being a “city slicker” myself (from a smaller city in the Midwest) where the opening day of hunting season was essentially a state holiday I’ve always remained perplexed by the notion that gun ownership isn’t an individual right.
By people, I meant lawyers, which is why you wouldn’t understand it the same way.
I suppose it *would* take a lawyer to torture plain and universally-understood grammar into something it’s not. 😉
That’s adorable. You thought the understanding of the law meant your understanding of the law.
I’m particularly interested in how we got to this point. Is it simply out of pure ignorance? I think we face multiple issues that combine to make us vulnerable at this point in our history. One of the biggest driving forces behind this is the weakening of our education system; it is not that math is taught differently or that different books are read in literature classes, but that we now seem to lack the capacity to teach children to think analytically. With no ability to parse and evaluate the information handed to them and our society demanding greater and greater distractions from the realities of the world, our insular tendencies lead many of us ever closer to the fascism of the individual.
I think, therefore I am right.
All others are of another tribe.
Different is what I do not know, therefore it must be bad.
Bad must be punished with immediacy.
This is one of those comments on the verge of being trashed for going off-topic and down the rabbit hole. I’m posting it, but won’t tolerate this digressing any farther into a discussion of the efficacy of the education system.
My apologies. I did not intend to direct the conversation to the education system, but I wrote in response to the ending of your article regarding how some people accept some rights and not others.
No need to apologize, as the underlying question of how this happened is a good one, but one that has a huge potential for mischief as a free-for-all.
This is a troubling essay, not because we disagree, but because we are wondering why we cannot sit on the fence/be indecisive with respect to the issues? The arguments are nicely and neatly bifurcated between the so-called conservatives and liberals.
Most of us were forced to “pledge allegiance” at an early age before we knew what this Constituition busyness was all about. We were indoctrinated no less than if we had grown up in No. Korea, Russia or Iran. Our subsequent education on the Revolutionary era and the Constitution was cursory and inadequate. We graduated without knowing a whole lot of Amerikan history. How could we? These days, history has morphed into herstory, it would appear. Why am I unable to like some parts of the Constitution and not others? Really!
The gun ownership issues seem to focus unduly on “the gun”, as opposed to the “owner” of the gun and the safe guardianship of same. I see the gun as largely symbolic of our right to protect ourselves not only from unlawful intruders of our castles, but also against unlawful acts against us by the state itself. The state does not follow the Constitution anyhow. Why should I? It is constantly carving out exceptions, exemptions, and using literary devices in order to shield itself from liability and to do what it wants to do anyway. Remember: The
state is a fiction whose agents are none other than our fellow citizens, duly elected or appointed, as the case may be. (In my entire life, those agents have never listened to me; and I believe many Amerikans feel the same.) You won’t listen to me? Well, lookee here, see my gun!
The problem is not that gun ownership could or should be restricted [to “law-abiding citizens”]. The problem–as I see it–is that the state, which is a fictional entity whose agents are our neighbors, wants to possess ALL of the guns and prohibit private ownership altogether. That is the fear: The state wants us, the working slobs and lowlifes, to be totally defenseless.
I do not own a gun, but I do own a Bowie knife. I don’t need the knife. I never use it. I did not grow up in rural Kentucky. My father did not teach me how to skin a buck; nor did I take the course, or pass the test. I have no need for any knife this large and this threatening. But it’s nice to look at and handle. It’s a “masculine” thing. It’s a romantic reminder of a bygone Jacksonian era before we were emasculated by the Nanny State. It’s not going to stop someone from pushing me onto the subway tracks. Same with guns, till some bloomin idiot does something stewpidly awful, not to mention “illegal”. And then the hand-wringing begins.
My personal solution was to get a dog. Guess what? The state came along and took the dog! He barked too loudly at strangers and law enforcement. And the rest is history. One state “judge” decided that dog ownership was a “privilege” and not a “right”. (It’s in the transcript, not the Constitution.) She banned me from dog ownership for five years–seriously–but said nothing about gun ownership. Is this stewpid, or what?!? How did she as agent for the fiction which is the “state” get away with this breach of my 2nd Amendment right to protect myself from intruders and unlawful actions by the state itself? Inquiring Minds demand answers, Heller-breath.
TL;dr. I’m hoping this isn’t just crazy talk and I’ll regret posting it.
I saw you post a one word comment the other day and thought to myself… i wonder if bill has been abducted by aliens and replaced with a replicant. Welcome back!
I love this comment.
Robert Jackson’s (not as famous as it should be quote) covers this; but it seems that it needs to be reiterated for every generation.
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles to be applied by the courts. / One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Damn, I wish I had thought to include Jackson’s quote in the body of my post. Thanks for adding it.
I’m not familiar w/ this quote or its author.
Is this the right Robert Jackson; “Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was United States Solicitor General (1938-1940), United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954)”?
TIA
That would be the Jackson.
I think a lot of people want to recreate in their government the relationship they once enjoyed with their parents. Most of us, I hope, had the experience in our childhood of being ‘governed’ by people who were, beyond question, our superiors in terms of intellectual and moral development, who also could be relied upon to put our own best interests ahead of their own. It’s a sobering realization that, as adults, we have nobody to call upon to form a government other than our own neighbors, a bunch of ordinary schlubs like us, just muddling through and (hopefully) giving it their best shot. We really want to believe the people who show up with badges or in front of microphones on TV are drawn from among the angels, and we can attribute to them a benevolence and competence we’re not willing to attribute to our fellow citizens in general.
How long have you suffered from these “daddy” issues?
At least since Robert Filmer’s “Patriarcha”, maybe before.
I can only lament that the 2nd amendment that many would like to deny us all can only be enforced at the point of the same guns. I’ve always said I’ll make a deal- I’ll give up my guns when government does it first.
Notice how everyone else managed to get the message that it would be completely inappropriate to use this post as a vehicle to express their underlying side on the issue. Except you. But someone always has to be that guy.
I’ve got to agree with William Doriss’ question-statement: “Why am I unable to like some parts of the Constitution and not others?”
The whole 2nd Amendment issue to one side, there’s nothing wrong with wanting to change the Constitution. The entire shebang is an expression of the will of the people, which is fluid over the centuries. The value in the Bill of Rights is that it’s the political equivalent of the “Exit without saving? Y/N Are you sure? Y/N Are you super duper sure? Y/N You’re not gonna change your mind no matter what? Y/N One last chance to say no…? Y/N” dialog boxes. They guard those protections that we’ve decided at some point are so important that they need to be insulated against short-term swings in public opinion. There’s nothing in that deal that says they should be insulated against long-term changes. As a matter of law, you’ve got to take all or nothing, but there’s no reason I can’t fight to my last breath to get the 3rd Amendment repealed and give the troops the freedoms that God intended for them!!!
You’re conflating two entirely different points. Hate the 3d? Want it gone. So advocate for its repeal. That’s fine. But until it’s repealed, adhere to it because it’s the law. The issue isn’t love or hate, but respecting constitutional rights because they are constitutional rights.
So, anti-gun advocates say “ignore the 2d Amendment.” Anti-crime advocates say “ignore the 4th, 5th, 6th and 9th Amendments.” Anti-hate speech advocates say “ignore the 1st Amendment.” Unless you think you’re entitled to ignore whatever amendments you don’t like, and expect others to respect the ones you do, you’ve missed the boat.
BTW, agreeing with Bill is generally considered a risky proposition around here.
No worries, I’m an odd duck. I learned to stop worrying and love the law by repeatedly debunking “freemen” and “sovereign citizens” on YouTube, so I don’t invest very heavily in internet points. Yeah, I just admitted I’m a YouTube commenter. So there’s that.
Love your blog, by the way! I’ve been slacking on my blawg rounds, but I’m gonna try and catch up!
Let’s leave the crazies out of it. This is a law blog. You know, for lawyers?
Oh, right, I forgot that the law shouldn’t concern anybody but lawyers. I still like ya, though. 😛
“Concern” is fine. That’s why non-lawyers are allowed to read and think about it, which would be a great place to demonstrate their concern by stopping when their reach exceeds their grasp.
I think it’s really generous of you to credit conservatives for their First Amendment stances when so many of them have been so censorious in the past and much of what we see now is just reaction to the left going way too far. It’s even more generous to credit liberals on the Fourth, Fifth, and Sixth while we’ve got academics, lawyers, and elected democrats rolling their eyes every time anyone thinks the phrase, “due process” and every one of their pet causes has its own regulatory body with a sentence first/verdict afterwards paradigm. All I see is conservatives like guns and liberals hate the death penalty. The rest of the time they just want the result they want and they don’t care how they get it. I call it a culture of lawlessness, but you don’t even want to get me started on the education system.
It’s irrelevant who gets credited for what. The sides change, the point remains the same. Who hates what today isn’t a big deal, but that somebody always hates something and advocates for society to run it over roughshod.
“Which brings us back the Second Amendment’s right to keep and bear arms. Like most people of my generation, and lawyers in particular, it was understood to refer to a militia rather than an individual right up until the moment the Supreme Court told us otherwise in Heller.”
Interesting. I had no idea that most lawyers understood the Second Amendment’s first clause to predominate. I suppose I shouldn’t be surprised. The Supreme Court decision in DC v. Heller was 5 to 4, and US v. Miller upheld the NFA because no witness was there to testify that of course a short-barreled shotgun has militia utility.
That’s what the law was at the time. It was what we refer to as “well-settled,” meaning uncontroversial provided we didn’t have any particular ax to grind against it. This was long before Heller was a twinkle in anyone’s eye.
Thanks Scott. I appreciate your statement about the Constitution – it’s not a menu, to be sure. I am one who believes it’s all written as is with good reason, by people who had lived without those protections and decided to make sure that wouldn’t happen again on this continent. And sure, there are a few things I don’t really like in there – but no matter, it’s THE LAW. And that applies especially so to the Bill of Rights.
I do get pretty wound up about people living with the benefits of the Constitution, trying to cripple it because they are so comfortable that they think it’s no longer necessary to support it. Maybe they need to go back to school and read some American history. Or maybe because of their ignorance they should be denied free speech on political matters? (That was snark, but is also an example of what they want to do to others.)
Nice twist on Yeats’ The Second Coming there.
Novel theory is making a breakout:
Bill of Rights is the new Chinese takeout.
One of those, two of these,
Double sauce on that, please.
Bon Appetite watching the shakeout!
Or: “The power you give government to do unto others will be used to do unto you.”