Wilkinson’s Constitutional Tyranny

The Niskanen Center used to be a libertarian think tank, until it decided manifest destiny applied. With that, the very smart Will Wilkinson took to the papers to argue against “assault weapons.” Fair enough, and there is no doubt that the matter of gun control is a huge issue in the country. Wilkinson is hardly the only smart guy who has taken the position that semiautomatic guns are a blight on America, a weapon that can no longer be tolerated and, all other issues aside, must be stopped.

But how his argument is framed is a problem.

Why an Assault Weapons Ban Hits Such a Nerve With Many Conservatives

The premise of Trumpist populism is that the political preferences of a shrinking minority of citizens matter more than democracy.

As I’ve said here many times, I’m not a gun guy. If there was no such thing as an AR or AK or a semiautomatic weapon beginning with the letter “A,” I would lose no sleep. I don’t have one. I don’t want one. If they were banned, per se, it would make no difference in my enjoyment of life.

But those characterizations scare the crap out of me. Only conservatives have guns? Only a minority care about constitutional rights. Only “Trumpist populism” stands between the Constitution and the evisceration of constitutional rights when the majority, if it is a majority, wants to rid us of these meddlesome rights?

Wilkinson’s argument uses the juxtaposition of Beta O’Rourke’s mandatory gun buyback idea with Houston Republican legislator Briscoe Cain’s challenge suggesting he won’t give up his AK whatever without a fight. Wilkinson goes nutpicking.

Democracy is what we do to prevent political disagreement from turning into violent conflict. But the premise of Trumpist populism is that the legitimacy and authority of government is conditional on agreement with the political preferences of a shrinking minority of citizens — a group mainly composed of white, Christian conservatives.

I get the concern. I’ve heard it from many, and understand why Wilkinson has joined their ranks. When the bottom line is life or death, and you’re staring down the barrel of a gun, the last think you’re thinking about is the constitutional ramifications of what you’re about to say or do. Survival comes first. I get it.

What’s being argued here isn’t survival, but how a constitutional right, despite Wilkinson’s somewhat disingenuous argument about holdings in circuit courts that have intentionally challenged the Supreme Court to reverse them for their flagrant refusal to apply Heller and McDonald, is subject to the will of the majority.

The argument is grounded in ad hominem, that only Trumpists are interested in the Second Amendment, and that they are the minority of Americans. To dispute Wilkinson, therefore, means you must be a Trumpist, and hate the will of the majority. And, of course, the weapons themselves are evil.

Weapons of mass death, and the submissive fear they engender, put teeth on that shrinking minority’s entitled claim to indefinite power. Without the threat of violence, what have they really got? Votes? Sooner or later, they won’t have enough, and they know it.

Wilkinson evokes the fears of parents, of good people, of people who don’t want to die and don’t want others to die. Appeals to emotion are understandable. Mass shootings are emotional. Mass shootings of school children are as emotional as it gets.

But the same can be, and has been, said about the rest of the Bill of Rights, whenever they work to the benefit of someone whose conduct is awful, wrong or, at times, deadly. Can the Fourth Amendment serve to free a murderer, even a mass murderer, if the search and seizure is unconstitutional? It can, and wouldn’t a majority of Americans find it troubling that we let murderers go free?

I would. I bet Will would as well. Probably you, too. Because we’re not supporters of murder or murderers. We condemn such terrible crimes. We can be outraged at the harm they cause. But we know better than to qualify constitutional rights for all because the majority decides the rights of the minority, if minority it is, are no longer worthy of protection.

Democrats don’t want to grind the rights of Republicans underfoot. They want to feel safe and think it should be harder for unhinged lunatics to turn Walmarts into abattoirs. But when minority-rule radicals hear determined talk of mandatory assault rifle buybacks, they start to feel surrounded. They hear the hammers clicking back, imagine themselves in the majority’s cross hairs.

No decent human being wants some unhinged lunatic to open fire in Walmarts. Or a schools. Or anywhere. Or a murderer to walk free. Or “hate speech” to be used to attack a person for being black, or gay, or transgender. The list goes on. The same rationale applies. It’s long been referred to as the tyranny of the majority, where enough people decide that they don’t like a right enjoyed by the minority, and since they’re the majority, they can just eradicate the right they disdain.

That’s why we have a Constitution. If the majority decides they no longer like a right, and their solution is to vote it away rather than amend the Constitution to reflect the change they seek, then no right is safe, including the rights you may need when it’s your turn in the crosshairs.

69 thoughts on “Wilkinson’s Constitutional Tyranny

  1. Noxx

    It is fascinating to me that the same hordes who are on camera in front of courthouses decrying the “unconstitutional” exercise of rule by fiat, champion the exact same process when it’s not their ox. I’ve never had much faith in the critical thinking ability of the masses, but the recent ridiculous rhetoric, whether it concerns immigrants, guns, or juicy juicy grape flavored steam devices, has really pushed me towards throwing my hands up.

    Reply
    1. Rxc

      The progressive movement has historically wanted to completely replace the constitution with one that they think would be more appropriate for a modern society. They had some success with the income tax and the election of senators, but then stumbled with prohibition. I think they would prefer something like the one that the EU developed, but which was voted down by the people of Netherlands and France. Lots of “rights”, but subject to refinement by smart, unelected bureaucrats. Certainly no guns. Or hate speech.

      Reply
      1. SHG Post author

        The key to progressive ideology is deciding correct outcomes and then rationalizing how to achieve them. It’s a dangerous way to fix the world.

        Reply
  2. DaveL

    Democracy is what we do to prevent political disagreement from turning into violent conflict.

    What nonsense is this? No, allowing an unrestrained majority to run roughshod over the rights of any and all minority groups is most assuredly not what keeps disagreements from turning into violent conflict. In fact it has often historically been the very soul of violent conflict. Yes, part of our constitutional order involves an agreement to use majority rule to decide on some questions, that fall legitimately within the public sphere. But another major part of that constitutional order is the outright removal of a great many questions from the reach of majority rule, and reserving them to the individual.

    Reply
    1. SHG Post author

      The Constitution protects rights to prevent the tyranny of the majority (and the powerful). It’s intentionally undemocratic, except by means of amendment.

      Reply
      1. Rensselaer

        Indeed, the entire concept of “rights” is undemocratic: the idea behind rights, whether individual or group ones, is that you retain them in spite of the whims of the government, so they can’t be taken away because the king, the majority, the high priest, the generals feel like it. It’s one reason people who are concerned with the “highest good”, “greatest good”, like utilitarians, tend to dislike rights: Jeremy Bentham described talking about rights as “terrorist language”, because the greatest good of the greatest number of people is held hostage to one person’s claims or concerns.

        Reply
  3. Matthew Scott Wideman

    I own several firearms and I am not a Trump supporter. In fact I bought my firearms around the same time I voted for a second term for Barrack Obama and my lost vote for Hillary Clinton. Firearms are not for everyone…..the choice to own weapons is up to everyone. If you don’t agree with the 2A, then support and push an amendment to the Constitution. Back dooring and removing rights with small legislative bullshit and administrative rules doesn’t make us safer. It just normalizes the back door errosion of our republican rights.

    The problem Mr. Wilkinson is going to have is the 14 words in the 2A are very plain and easy to understand. The 9th Circuit and progressives can do all the gymnastics in the world to twist the wording as meaning something other than it does. But, the average american and average gun owner isn’t willing to twist the plain meanings of the 2A. There in lies the problem.

    I also like how Mr. Wilkinson and many progressives are threatening to confiscate guns. Are any of them going to volunteer to suit up with the local SWAT team and start raiding homes? I think not. They are going to leave that to the plebian local authorities….. They are firebrands about safety and the tyrnanny of the minority, but they won’t sign up for the war.

    Reply
  4. phv3773

    The Supreme Court has been unable to articulate the meaning of the Second Amendment in a clear way. It’s hard to imagine the citizenry doing any better.

    Reply
    1. Matthew Scott Wideman

      “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”.

      That is as plainly written as you are going to see in law. It certainly doesn’t mean a US Citizens firearm ownership is limited by what scares Beto.

      Reply
  5. Michael Montemarano

    My count is 28 words, so clear that Helller was the result? And before the 2A corner starts justifying that abortion, uh, opinion, they should acknowledge that it went FAR further than any decision in the preceding centuries. I await, eagerly, wideman’s explanation of how the coequal focus of 2A , the militia, got excised from his copy of the constitution.

    Reply
    1. Norahc

      The militia at the time of drafting was all able bodied men, just like all arms at the time were “military” arms. So if you really want to focus on the militia clause, then every able bodied man would have access to military arms. Is that the argument you really want to make?

      Or maybe we should apply the restrictions we have on the 2A to the other rights. Want to vote? Fingerprint based background check every few years. Want freedom of speech? Mandatory training and safety classes.

      None of these options are acceptable when applied to non-2A rights, so why do we accept them when applied to the 2A? Before you respond, keep in mind the current trope that “words are violence and hurt people” that is flooding our society.

      Reply
      1. SHG Post author

        Great. Now it’s down to the battle of bullshit over the meaning of the 2d A. It means what Heller says it means, right or wrong. Rearguing it here is a waste of my bandwidth and just pisses me off. Don’t do it.

        Reply
  6. JMK

    The fundamental issue of the current culture war is the definition of the word “right.” To one side, “rights” are “things that I am free to do” such as speak without being censored by the government or, as is the case here, to own arms. To the other side, “rights” are “things I can make other people do for me” such as demanding someone bake you a cake, call you by your preferred pronoun, or pay for your basket weaving degree.

    With such a fundamental difference between the two sides, it’s fairly unsurprising that we’ve come to where we are today, and likely that the breakdown in civility will become worse over time rather than better.

    Reply
  7. Cinnamongirl

    I don’t see the point of semi-automatic weapons. You can’t kill 21 deer at once. They are made to kill. What if we made every young man who wanted to buy a gun go through the process young women have to go through to get an abortion in some jurisdictions: get parental permission, travel to another state, wait 48 hours, get a medical exam, get counseling, go through a gauntlet of grieving mothers holding pictures of their dead children and feel guilt and shame for the rest of your life. Gov requires them to buy insurance to drive cars that can be used as weapons, why not guns? No one is taking away your guns but what about common sense gun control like banning bump stocks and requiring background checks at gun shows. We don’t have to go as far as the restrictions on abortion, but when our kids have to endure active shooter drills in elementary school, something is wrong.

    Reply
    1. SHG Post author

      Many share your view. Many do not. The question isn’t whether they’re needed, but that the 2d A protects them, just as the rest of the bill of rights protects myriad rights that many don’t believe are good or necessary.

      Reply
    2. Skink

      SHG gave you a break. I don’t.

      Please tell us you aren’t a lawyer. If you are, can’t you see that you conflate a very definite constitutional right with a very questionable court-made right, one created out of whole cloth? If not, can’t you see that any erosion of a constitutional right because of the feelings at the moment can and will lead to the erosion of the others, including a court-made right? Can’t you see that the abortion decisions are at risk if constitutional rights are changeable at whim?

      How many of the first 10 Amendments are you willing to waive? The way you think, they’re all waivable.

      Reply
      1. Cinnamongirl

        Yes I am a lawyer. I’m not waiving anything. I said you can keep your guns. When the second Am was written it took a full minute to reload a musket. If kids weren’t being gunned down every single day in this country I wouldn’t give a rat’s ass how many guns you’re stockpiling Common sense regulation is a matter of public health and is not the equivalent of hate speech which just offends the woke. Who cares? Nobody is dying.

        Roe is still the law of the land even though it’s an implied constitutional right as is many other rights to privacy. Why is it that these mean-spirited restrictions meant to harm women don’t bother you but gun restrictions do?

        Reply
        1. Bryan Burroughs

          You’re not convincing anyone around here with the “common sense” trope. Whether I agree or disagree with a given proposition, when I hear someone start talking about “common sense reforms,” I immediately assume that whatever is about to be proposed is either awful, unConstitutional, or both.

          Reply
        2. The Real Kurt

          And when the first Ten were enacted, along with the rest of the Constitution, cannon, on land, were often owned by private individuals as indeed were the frigates that also bore them, and both had been used against the British during the war. The rifle, sword and tomahawk in private hands were the assault weapons of the day.

          Context must be understood, and I don’t think you do.

          The Real Kurt

          Reply
        3. DaveL

          Common sense regulation is a matter of public health and is not the equivalent of hate speech which just offends the woke

          But the mere ownership of AR-15s by your neighbors harms you not at all. The act of shooting another person with them is not protected by the 2nd Amendment. In fact I think being offended is very much the heart of the matter. Rifles of all descriptions are used in fewer murders than knives, fewer murders than blunt objects, fewer murders than just hands and feet. But they offend certain people who for cultural reasons object to the private ownership of arms. But suppression of other cultures is regarded as a Bad Thing, so there’s a need to introduce tropes for camouflage like “public health” and “common sense”.

          Reply
        4. Skink

          You’re a lawyer. I see why Scott gets seasonally morose. How is it possible, for you as a lawyer, to so thoroughly ignore the issue when it’s laid-bare for you?

          Reply
        5. B. McLeod

          18.2 seconds to reload a smoothbore muzzle-loader. The infantry training standard of the day was “three well-aimed shots per minute.” The English longbow boasted better range, accuracy and rate of fire at the time, but required years of training.

          “Minute men” were so-called because that was how fast they were supposed to answer the muster role if called to assemble (seldom actually achieved). It had nothing to do with their weapons.

          Reply
    3. Dan

      Aside from all the other nonsense, semi-automatic firearms are used for hunting all the time (not that hunting has anything to do with the purpose of the Second Amendment). The AR15-pattern rifles, specifically, are by far the most popular centerfire rifles in the country, and in the standard chambering, work very well for hunting small game. They might be a little light for deer, but there are plenty of alternative cartridges that would be suitable for deer and even larger game.

      As a second point, guns sold by dealers at gun shows are subject to exactly the same background check requirements as guns sold in their stores. The so-called “gun show loophole” simply doesn’t exist.

      Not that your perception of “the point” or “need” matters for a constitutionally-protected right, but that’s two places where you’re simply incorrect. You’re entitled to your own opinions, but not to your own facts.

      Reply
      1. B. McLeod

        A key benefit of semi-auto is keeping your sight picture, just as useful in hunting as any other application. Also, people who lump all “semi-auto” are dragging some really dated arms into the mix. It’s like “weapons of war.” Let these folks go unwatched and they’ll be coming around for your 19th Century Springfield rifled musket before you know it.

        Reply
    4. Hunting Guy

      Lawdog. (Retired police officer.)

      “Since what you consider to be reasonable isn’t even in the same plane of reality with what I consider reasonable, probably not.

      Allow me to explain.

      I hear a lot about “compromise” from your camp … except, it’s not compromise.

      Let’s say I have this cake. It is a very nice cake, with “GUN RIGHTS” written across the top in lovely floral icing. Along you come and say, “Give me that cake.”

      I say, “No, it’s my cake.”

      You say, “Let’s compromise. Give me half.” I respond by asking what I get out of this compromise, and you reply that I get to keep half of my cake.

      Okay, we compromise. Let us call this compromise The National Firearms Act of 1934.

      There I am with my half of the cake, and you walk back up and say, “Give me that cake.”

      I say, “No, it’s my cake.”

      You say, “Let’s compromise.” What do I get out of this compromise? Why, I get to keep half of what’s left of the cake I already own.

      So, we have your compromise — let us call this one the Gun Control Act of 1968 — and I’m left holding what is now just a quarter of my cake.

      And I’m sitting in the corner with my quarter piece of cake, and here you come again. You want my cake. Again.

      This time you take several bites — we’ll call this compromise the Clinton Executive Orders — and I’m left with about a tenth of what has always been MY DAMN CAKE and you’ve got nine-tenths of it.

      Then we compromised with the Lautenberg Act (nibble, nibble), the HUD/Smith and Wesson agreement (nibble, nibble), the Brady Law (NOM NOM NOM), the School Safety and Law Enforcement Improvement Act (sweet tap-dancing Freyja, my finger!)

      I’m left holding crumbs of what was once a large and satisfying cake, and you’re standing there with most of MY CAKE, making anime eyes and whining about being “reasonable”, and wondering “why we won’t compromise”.

      I’m done with being reasonable, and I’m done with compromise. Nothing about gun control in this country has ever been “reasonable” nor a genuine “compromise”.

      Reply
    5. PAV

      What do “young men” have to do with this? I hope you don’t think it’s only young men who appreciate the equalizing force a gun provides.

      —Signed, a disabled woman who wants your hands off her ability to defend herself with lethal force.

      Reply
  8. Noxx

    “What if we made every young man who wanted to buy a gun go through the process young women have to go through to get an abortion in some jurisdictions“

    What if the moon were made of fucking cheese? Bullshit like this is a waste of everyone’s time. Earning a law degree doesn’t exempt you from being a fool. “Hunting”, “common sense”, etc, all nickel candy irrelevant nonsense. Do better.

    Reply
  9. Cinnamongirl

    Did you read Heller? The 2ndAm is not absolute. Just like the 1st is not absolute. We live in a society. The constitution is a living document. If you want to debate then do so without attacking me as a professional. That is always a sign that your arguments are weak.

    Reply
    1. Noxx

      Do you genuinely think your argument is not weak? Did you come up with your abortive attempt at conflation, the exhausted “killing deer” trope, take a moment of reflection and say to yourself “Yep, that’s all solid”?

      That’s amazing.

      Reply
      1. Cinnamongirl

        I’m not an originalist. Sorry if that offends you. You have every right to cling to your guns and religion. And I have every right to protect women and children from insanity.

        Reply
        1. The Other James

          At the risk of being kicked out of the libing room (or worse, banished to reddit).

          You want to heavily regulate guns, which people use to kill <40,000 other people a year, to protect children and women.

          But you're in favor of abortion, which results in nearly 900,000 deaths a year,

          If you're going with the emotional, social-benefit argument, I'm not seeing your point.
          If you're going with the "right to privacy" argument, how does the right to private medical procedures compare to the right to private ownership of guns?

          Most importantly, as others have pointed out, the case law is settled. Neither you nor I get to decide which right is more important.

          Reply
          1. Cinnamongirl

            Can you read? Did I ever say I wanted to heavily regulate guns? I mentioned banning bumpstocks and favoring background checks at gun shows.
            If only men could get pregnant. There would be an abortion clinic on every corner in the nation. And no rectal exam would be required.

            Reply
            1. The Other James

              And I quote, from your opening post:
              What if we made every young man who wanted to buy a gun go through the process young women have to go through to get an abortion in some jurisdictions: get parental permission, travel to another state, wait 48 hours, get a medical exam, get counseling, go through a gauntlet of grieving mothers holding pictures of their dead children and feel guilt and shame for the rest of your life.

              How does this not represent heavy regulation?
              Parental permission
              Interstate travel
              Waiting periods
              Counseling
              Medical exams
              Gauntlets of grieving parents
              A lifetime of guilt and shame

              Sounds like a pretty onerous burden to me.

            1. Suzi

              Cinnamongirl,

              Like you, I see no use for assault weapons and care far more about the harm they do than anyone’s complaint about being denied their AR-15. But you created this clusterfuck by making the sort of arguments that only fly in an echo chamber of people who are passionately against the Second Amendment and guns. It’s easy to get away with dumb points when surrounded by people who agree with you. It’s not as easy when dumb or irrational arguments are released into the wild.

              The problem isn’t that this is an echo chamber against you, but that you’ve lived in your own echo chamber where irrational and factless arguments go unchallenged. You’ve now been challenged, and you respond with ad hominems, feeding the worst expectations of the irrational woman and mindless gun-hater.

              If you had to start this argument, you should have done a far better job of it. Don’t blame others because your argument failed miserably.

            2. Cinnamongirl

              Suzi,
              I think I know who you are. There are is a shortage of gender perspective here so I appreciate the attempt. If I started a stupid argument then I’m guilty as charged. I’m well read and not dumb and irrational. I take issue with that. This post is a microcosm of the state of the union. We talk past each other not to each other. It’s us against them in this cold civil war.
              Unfettered gun rights are safe as far as I can tell. We have a dysfunctional Congress that will never pass any restrictions. If that didn’t happen after 20 first graders were gunned down, well then. And we have a conservative Court for the foreseeable future. Nevertheless, as a mother and a liberal (shoot me) I don’t want to see anymore kids dying. My own is protected in a Manhattan private school bubble so I don’t have to worry about him. But, it will be his generation that will have to address it at well as climate change and all the other issues that our generation has kicked down the road. Good luck and God Bless them.

            3. Suzi

              There is a difference between “you are dumb and irrational” and your argument is. You might be surprised how many women are here, even if they don’t comment as regularly as the guys.

              One of the things that tends to happen here is that sides tend less to break down by identity than by reasoning. This is one of the few places where rigorous thought prevails regardless of whether it’s right, left or somewhere in between. It’s a safe space for heresy.

            4. SHG Post author

              I have a pretty good idea of how many SJ readers are women, and more notably how many contribute to the upkeep of this here hotel. It is, indeed, far more than most people realize. SJ is no boys club.

            5. SHG Post author

              Like the vast majority of readers here, they want to read but don’t have anything new to contribute. I think you should contemplate why they contribute money to support SJ even though they don’t comment often.

              By the way, some commenters are women, even though you wouldn’t necessarily know it. I, however, know it.

      2. SHG Post author

        My post relates to the Second Amendment, not to reargue Heller, as I hoped I’d made clear, but to note that as long as the Supreme Court is the final arbiter of the meaning of the Constitution, we are constrained to accept it’s holding without regard to whether we agree with it as a matter of policy or constitutional interpretation.

        That said, we are left with a choice, to either support constitutional rights or not, and like it or not, that includes the Second Amendment along with the rest of them. The point here is that the Second Amendment is not subject to the democratic approval of the majority, as Wilkinson argues, but is a bulwark against the majority, as are the rest of the Bill of Rights.

        Yet, discussion seems to invariably devolve into the tangential and utterly pointless argument over policy, constitutional interpretation and whether ARs are the problem. It’s a shame that we can’t focus long enough, hard enough, on the only question raised in this post. It’s similarly a shame that people who are anti-gun refuse to consider why their arguments (sound or otherwise) aren’t equally available for people who don’t agree with the exclusionary rule or the right to counsel. If the majority decides that an enumerated right is wrong, can they vote it off the island? Sometimes, we have to let go of our policy preferences in favor of the Constitution, for it one right is subject to democratic disdain, so are they all.

        Now carry on, if you must.

        Reply
        1. B. McLeod

          We are constrained to accept its holding until our lot is in power and can pack the court! then everybody else will be constrained to accept the new holding, until their lot can pack the court some more.

          Reply
            1. B. McLeod

              Eventually, almost all of us will actually have to be on the Court, and only a handful of lawyers will be left to argue in front of us, maybe the ABA members.

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