At Mother Jones, Kevin Drum misreads my earlier post on Hillary Clinton and the Second Amendment, and then chides me for his misreading. Drum writes:
Let me get this straight. Cooke says that for the entire 221 years before Heller, Americans enjoyed the right to keep and bear arms. But if Heller were overturned, it would render the Second Amendment a dead letter. What?
Hillary Clinton would clearly prefer to regulate gun ownership more than Cooke would like. That’s fair enough. And I’m actually somewhat sympathetic to the claim that the Second Amendment guarantees an individual right to own guns. But that right—as Cooke admits—managed to thrive during the entire two-century period before the Supreme Court got around to actually saying anything about it in 2008. So why would the Second Amendment suddenly go up in smoke if we returned to pre-Heller jurisprudence? It is a mystery.
It’s not a “mystery.” It’s extremely straightforward. And Drum’s first line — “Charles Cooke says that Hillary Clinton really does want to take away your guns” — is flatly incorrect; I said no such thing, and nor would I. Rather, I said that Hillary Clinton wants to “render the right a dead letter,” and that “Should Hillary get her way, that right would disappear (at least legally), and the government would be freed up to make any policy choice it wished.” [Italics added]
What Drum misses — but my post made clear — is that rights and government policies are different things. Britain, for example, has no First Amendment. This, however, does not mean that its government chooses to prohibit free speech completely, just that it regulate speech more robustly than governments in the United States are allowed to.
Contra Drum’s suggestion, I do not believe that Hillary Clinton wants to confiscate all firearms, and I appreciate that this isn’t her stated policy. But I do believe — because she’s said it repeatedly — that she does not approve of the harsh limitations that the Second Amendment imposes on the state. Or, put another way, I believe that – like many people who are more in favor of gun control than am I – Hillary Clinton wants the United States to regulate guns as does, say, Germany: Not as a right, but as a privilege. With the Second Amendment intact, she can’t do that.
As for Drum’s question:
But that right—as Cooke admits—managed to thrive during the entire two-century period before the Supreme Court got around to actually saying anything about it in 2008. So why would the Second Amendment suddenly go up in smoke if we returned to pre-Heller jurisprudence? It is a mystery.
Once again: I am talking here about the right itself. Before 2008, the central question of whether the Second Amendment protected an individual right had never been put to the Court (in part because it was so obvious). In 2008, it was, and the Court upheld the Standard Model. Should the Court now reverse itself, it would set as national precedent that the Second Amendment does not protect an individual right. And, if that were to happen, the right would be not only be dead, but there would be no way of getting back to the pre-Heller status quo ante. That governments could still choose not to exercise the power they had been freed up to use would not change that.