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Cass Sunstein on the Second Amendment



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In Bloomberg View, Sunstein argues that exaggerated claims about what the Second Amendment protects have recently become an obstacle to sensible gun policies. That the amendment blocks a rational debate on guns has less to do with the Founders’ wisdom than with the skill and power of the gun-rights movement, he claims.

Sunstein is usually, whether one agrees with him or not, a clear writer, but in this case I cannot follow what he’s saying.

He notes that former Chief Justice of the United States Warren Burger, a Republican appointee, said that the idea that the amendment protects an individual right to bear arms a “fraud” perpetrated “on the American public by special interest groups.” Several paragraphs of constitutional-law history later, Sunstein notes that the Court has now embraced the individual-rights view. He writes, “I am not saying that the court was wrong. The legal question is genuinely difficult, and people disagree in good faith how to solve it.” In that case, though, the Burger quote loses a lot of its force, doesn’t it? If Sunstein is right that the individual-rights view might be correct, then it’s not a fraud, and Burger was wrong to say that it is. And the fact that it only recently triumphed at the Court doesn’t tell us whether it should have triumphed. Maybe in this case the gun-rights movement brought the wisdom of the Founders back to bear on government practice. It’s a difficult question, I hear.

Next he notes that even today’s Supreme Court “has proceeded cautiously, and it has pointedly refused to shut the door to all gun regulation. . . . [A] lot of gun-control legislation, imaginable or proposed, would be perfectly consistent with the court’s rulings.” He adds:

In the political arena, opponents of gun control, armed with both organization and money, have been invoking the Second Amendment far more recklessly, treating it as a firm obstacle to any effort to regulate guns and bullets. As a result, they have made it difficult for Congress, and many state legislatures, even to hold serious discussions about what sorts of regulation might save lives. Consider this disturbing statement by Stephen Halbrook, a lawyer who has represented the National Rifle Association, about the very kinds of guns used in the Connecticut tragedy: “They get a lot of coverage when there’s a tragedy, but the number of people unlawfully killed with them is small.”

Halbrook’s statement, you’ll notice, doesn’t make any reference at all to the Second Amendment. It’s just an argument against gun controls. And a recent development–the rise of the individual-rights interpretation of the Second Amendment–can’t explain the longstanding absence of certain gun regulations. If gun-control opponents are making unsound arguments about the Second Amendment to support their policy views, then the fact should of course be pointed out. But are these unsound arguments, unsupported by the Court, really a “serious obstacle” to gun regulation, beyond the unpopularity of sweeping regulation, the intense opposition of some voters to most regulation, and public skepticism about what good regulation would accomplish? I doubt it, and he doesn’t really make the case.



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