Magazine | November 21, 2016, Issue

Hillary’s Second Amendment Nonsense

Her Heller position belies her supposed belief in the individual’s right to bear arms

Of all the pernicious words that punctuate the regulator’s glossary, none is so effective as the plucky little “but.” “I believe in free speech,” the censor will insist, “but I don’t think you should be permitted to write that.” “I hold a great respect for the free-market tradition,” the radical maintains, “but it does need a good dismantling.” “Of course we must respect religion,” assures the renegade, “but . . . ”

In our postmodern age, this trick can be vexingly potent. Because so many words have all but lost their meanings, only the most transparent of contradictions now get noticed. In times past, purveyors of the strategic “however” would have been frowned upon as shameful dissemblers. Today, they are rewarded with encomia. How “reasonable” they are. How “nu­anced.” How pragmatic.

During the third of this year’s surreal presidential debates, Hillary Clinton gave us a perfect example of this trick, and, in so doing, provided posterity with one of the most self-contradictory answers in modern American history. Asked for her opinion of the seminal Supreme Court decision D.C. v. Heller, Clinton first ex­plained that she “disagreed with the way the Court applied the Second Amendment in that case,” and then — by way of our favorite all-purpose conjunction — proceeded to advance precisely the opposite argument. “But there’s no doubt I respect the Second Amendment,” Clinton submitted, “that I also believe there’s an in­dividual right to bear arms. That’s not in conflict with sensible, commonsense regulation.”

You see? Clinton both believes that — wait, what?

As an attempt to convey different messages to different voting groups, Clinton’s answer was rather elegant. Legally speaking, however, it was arrant nonsense — the product of either unyielding civic ignorance or of a rank dishonesty. It is downright impossible to be in favor of an individual right to keep and bear arms and to oppose Heller. Why? Because Heller does about the bare minimum that a precedent-setting case could do: It affirms that right as a baseline principle without adumbrating the details.

Essentially, Heller held that because “the right of the people to keep and bear arms” means — wait for it! — “the right of the people to keep and bear arms,” the government is not permitted to impose regulations that amount to an effective prohibition upon the exercise of that right. In particular, the Court struck down the District of Columbia’s total ban on handguns, and deemed intolerable the city’s trigger-lock rules on the grounds that they made self-defense impossible. But the Court did not explicitly pronounce on, say, the constitutionality of an “assault weapons” ban; it did not flesh out in detail which regulations were acceptable and which were outré; and, disappointingly, it did not even set a standard of review. Instead, it confirmed the painfully obvious — that, as elsewhere within the Bill of Rights, “people” means “people” in the Second Amendment, too — and it removed the most egregious obstacles that had been placed in those people’s way. By claiming that she opposes Heller but supports the “individual right” to bear arms, Clinton is taking us deep into Wonderland, to a place where 2 + 2 = 5 and the rain is not wet to the touch. Her position is not quite as silly as the so-called collective-rights theory — namely, that George Mason and Co. demanded the amendment in order to protect the right of the people to join a state organization over which the federal government enjoys plenary power — but it’s close.

It is telling that Clinton is almost alone in taking the road that she has. Typically, gun-controllers try a different, more politically profitable approach: to concede that Heller was correctly decided at root, but to oppose its application beyond its specific facts. Running for office in 2008, then-senator Barack Obama took this option, praising Heller per se but offering a narrow interpretation of its majority opinion. “I have always believed that the Second Amendment protects the right of individuals to bear arms,” Obama said. “The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and [is] subject to reasonable regulations.” Among the “reasonable regulations” that Obama had in mind were “closing the gun-show loophole and im­proving our background-check system.” (I shall leave those for now.)

Or, put another way, Obama said, “Fine, I accept Heller, but I want this line of reasoning to go no further.”

Substantively, I find Obama’s cramped approach unpersuasive for three reasons. First, the Second Amendment protects the right ot bear “arms,” not “muskets” or “handguns,” and Heller both defines that term broadly and adds that weapons in “common use” are protected. Why, then, is Obama on record agitating for a ban on the most popular rifle in the country? Second, while Heller outlined no standard of review, the Bill of Rights does tend to invite “strict scrutiny” from the courts. Why, I wonder, does Obama believe that the Second Amendment should be an exception? And third, contrary to Obama’s frequent insinuations, Justice Scalia wrote that some restrictions on the amendment were tolerable, not that all rules except for those excluded in Heller were allowed. Does Obama believe that if a right can be infringed at all, it can be infringed in any manner at all?

Nevertheless, the president’s case is at least legally literate and logically consistent. Flawed as it might be, Obama follows his promises of fealty with an “and” rather than a “but,” and he makes the effort to explain how he squares his particular circle. He accepts the principle but is haggling over the details. Hillary, by contrast, is just flailing around desperately, never coming close to hitting anything approaching a coherent point.

The questions thrown up by Clinton’s foolishness boggle the mind. To what exactly does she think Americans have an individual right if the government can ban whole classes of commonly used firearms? When she says “sensible, commonsense regulation,” what precisely does she mean? What would a Clinton­ized Second Amendment actually do? And how would she feel if her position were translated into binding doctrine for a right that she actually likes — if, for example, Donald Trump had said that he be­lieves in the right to a free press but that the government should enjoy the power to ban all newspapers and to impose some restrictions on the Web?

One also wonders whom Clinton be­lieves she’s kidding. Is there anybody in America who is fond enough of the Second Amendment to factor it into his vote but who thinks simultaneously that the draconian laws of Washington, D.C., were fine and dandy?

Were the political press less reflexively hostile toward the Second Amendment, and were the Republican party’s presidential nominee capable of articulating conservatism as might a man speaking his native tongue, Clinton’s pathetic dissembling might have yielded any one of the questions above. As is it, she has got away with it. For now, at least.

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