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.