The Corner

The Administration’s Gun Brief

Benjamin Wittes praises it:

Whatever conception the founders may have had of the amendment, they didn’t have to think about situations like Virginia Tech, and they did not have inner-city gun crime. All of this argues against a simple translation of Second Amendment values from the founding era to our own. It’s a reality that is implicitly recognized in the Bush administration’s brief.

The justices, of course, are free to ignore the views of the solicitor general, as some of them surely will. Yet the brief is nonetheless important as a charting of a Second Amendment jurisprudence that takes account of this piece of our constitutional tradition without imposing a constitutional rule profoundly maladapted to modern American life. . . .

I would prefer simply repealing what Levinson once called “the embarrassing Second Amendment.” But, in the absence of that option, perhaps the best interpretive approach is one that looks a lot like the government’s brief: Acknowledging the amendment as proclaiming a right, but candidly treating that right as more flexible and less absolute than its neighbors in the Bill of Rights.

I mean no disrespect to Wittes personally when I say that the administration should be embarrassed to be praised in these terms. (Incidentally, does Wittes think that the Court should abandon the Founders’ conception of the First Amendment because they never envisioned Internet porn?)

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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