Politics & Policy

Reinterpreting the Second Amendment

Conservatives would do well to take Scalia’s interpretation of the Second Amendment.

I appreciated my friend Kevin Williamson’s response to my “soft-headed piece” (not to be confused with “soft piece, which it most certainly was), but as I read it, I couldn’t help but keep wondering when the punch line would come. It never did.

Before I dust off my poison pen and address the substance, I’d be remiss in not addressing the ad hominems first. As for my supposedly self-congratulatory declaration of being a “conservative and a Republican,” yes, I am both. The demand for rigid adherence to rote doctrine is strong, and there is always an impulse to say about defectors: “He wasn’t one of us.” My point was to try to make the accusation at least harder to level.

Sure, I can be dismissed as another soft, moderate, northeastern, Ivy League–type conservative, not the “real” kind. But for the record, in my first year at Harvard Law School, I did start a student organization there dedicated to supporting the war in Iraq. Perhaps I am too soft to identify with modern-day conservatism, but if so, I would suspect 95 percent of the country is as well.

In terms of my family in Sandy Hook, I agree with Kevin entirely that personal circumstances do not give my preferences any special weight whatsoever, which is why I included the phrase “personal circumstances aside.” To the extent that anyone’s preferences should be afforded special weight, it is obviously the families of the innocent victims massacred at Sandy Hook Elementary School. Just remind them not to bring their children’s teddy bears, lest we be influenced by something so silly and so human.

As for “intellectual honesty” — er, “dishonesty” in this case — it is nice to know that, as conservatives, we have monopolized it. After all, nothing screams intellectual honesty like the suggestion that I am “seeking” — yes, actively trying — “to diminish our constitutional rights.”

I trust that Kevin actually read my brief discussion of the constitutional argument in which I more or less summarized Justice Scalia’s majority opinion in District of Columbia v. Heller. Given Kevin’s assessment of my argument, Justice Scalia could apparently also use a tongue-lashing and a lecture about what “any educated person” should know the Second Amendment means. Scalia writes in Heller specifically about the meaning of “arms,” saying, “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity” (emphasis mine). He continues:

Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

According to Kevin, a conservative “originalist” or “textualist” no doubt, “there is no legitimate exception to the Second Amendment for military-style weapons, because military-style weapons are precisely what the Second Amendment guarantees our right to keep and bear.” If you actually read the amendment, and read it again and again and again, you will see it right there.

As evidence, Kevin cites the eloquent Justice Joseph Story — the guy who was “appointed by the guy who wrote the Constitution” — who spoke of “usurpation and arbitrary power of the rulers.” Lest you think Kevin was citing some sort of legislative history — something with which an intellectually honest originalist or textualist should be careful — Kevin reminds us why the Second Amendment was written in the first place. Not to kill Bambi or to protect from burglars, but to protect you and your family from the United States government. Judging by the title of Kevin’s upcoming book, “The End Is Near and It’s Going To Be Awesome,” that threat may be closer than some might think. But lock and load your constitutionally protected machine gun, because it’s going to be fun.

Kevin never addresses one of my core arguments, which is that embracing unrestricted gun access is bad politics. For a conservative, that might seem too unprincipled. After all, Republicans such as John Boehner worry about things like elections, deals, and compromises. They concern themselves with silly trifles like what other people think, how things are perceived, and how to ensure their party has a seat at the table. Conservatives, apparently, stick to principles — all the way down to the bottom of the ocean.

Nor does Kevin suggest how we might address massacres such as the one that occurred at Sandy Hook, although he does point out rightly that even the cops are bad guys sometimes, and that power corrupts. Perhaps the answer to Sandy Hook is we do nothing. They are, after all, “unusual” and “come out of nowhere.” Perhaps we are okay with the police functioning as a “janitorial service” for dead five- and six-year-olds.

I do not suggest that Kevin, or any conservative that I know for that matter, takes this horror lightly. We can debate whether more guns make us safer and whether each school should have armed guards — that may be a very viable option, although perhaps not the only one. I certainly do not accept, however, that we are powerless to do anything to lessen the chances of another Sandy Hook.

I also pointed out that, as a conservative, I worry about the potential for government abuse when adjudicating mental illness and preemptively incarcerating people. Those options should be thoroughly considered, no question, but they do raise due-process concerns that must be factored in as well. One thing I do not propose, and never have, is discarding the Second Amendment. I will not, however, pretend it means or says something it does not — that it prohibits us from regulating or banning especially deadly firearms. But take Justice Scalia’s word for it, not mine.

If you find these arguments unpersuasive, and believe that the government lacks the ability or the authority to impose reasonable regulations on gun ownership, then we simply will have to disagree on the Second Amendment’s meaning and, perhaps, how we can respond to these tragedies. Maybe we will also disagree about the fact that if the government decides to go door-to-door, you and your arms, no matter how powerful, stand no chance. The rest of us can worry about preventing the next Sandy Hook.

— Brett Joshpe is an attorney in New York City and co-author of Why You’re Wrong About the Right (Threshold Editions, 2008). 


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