Second Thoughts on the Second Amendment

"It's very interesting that you say that," Kates concludes, a bit triumphantly.

Kates apologizes later for his outburst, and in a subsequent phone conversation he acknowledges that "the Holocaust was not an event where guns would have mattered; the force was overwhelming." But he adds that guns might have mattered to individual Jews who could have saved themselves had they been armed, even if the Jewish community couldn't have saved itself collectively. And guns might matter to a Croatian woman who shoots a Serbian soldier breaking into her house, he suggests; if there were a Second Amendment in Bosnia, it would protect her.

Zealots in the pro-gun camp (Kates is not among them) seem to identify with the woman defending her home to the extent that they fear attack by the federal government. "Using a national epidemic of crime and violence as their justification, media pundits and collectivist politicians are aggressively campaigning to disarm private citizens and strengthen federal law enforcement powers," proclaims a special edition of The New American, a magazine on sale at gun shows. After gun control, the editors suggest, the greatest threat to individual liberty is the Clinton plan for providing local police departments with federal assistance. "Is it possible that some of those who are advocating a disarmed populace and a centralized police system have totalitarian designs in mind? It is worth noting that this is exactly what happened in many countries during this century."

This can be dismissed as ravings on the fringe, but it captures in crazed form the hostility toward a powerful central government which inspired the adoption of the Second Amendment right to bear arms 200 years ago and fuels support for it today. Advocates of First Amendment rights, who believe firmly that free speech is both a moral imperative and an instrument of democratic governance, should understand the passion of Second Amendment claims.

They should be sympathetic as well to the more dispassionate constitutional arguments of gun owners. Civil libertarians who believe that the Bill of Rights in general protects individuals have a hard time explaining why the Second Amendment protects only groups. They have a hard time reconciling their opposition to prohibitions of problematic behavior, such as drug abuse, with their support for the prohibition of guns. (Liberals tend to demonize guns and gun owners the way conservatives tend to demonize drugs and pornography and the people who use them.) In asserting that the Second Amendment provides no individual right to bear arms or that the right provided is anachronistic and not worth its cost, civil libertarians place themselves in the awkward position of denying the existence of a constitutional right because they don't value its exercise.

The civil-libertarian principles at issue in the gun debate are made clear by the arguments of First Amendment and Second Amendment advocates, which are strikingly similar--as are the arguments their opponents use. Pornography rapes, some feminists say. Words oppress, according to advocates of censoring hate speech. "Words Kill," declared a Planned Parenthood ad following the abortion-clinic shootings in Brookline, Massachusetts, last year. And all you can say in response is "Words don't kill people; people kill people." To an anti-libertarian, the literature sold at gun shows may seem as dangerous as the guns; at a recent gun show I bought Incendiaries, an army manual on unconventional warfare; Exotic Weapons: An Access Book; Gunrunning for Fun and Profit; and Vigilante Handbook, which tells me how to harass, torture, and assassinate people. Should any of this material be censored? If it were, it would be sold on the black market; and the remedy for bad speech is good speech, First Amendment devotees point out. According to Second Amendment supporters, gun-control laws affect only law-abiding gun owners, and the best defense against armed criminals is armed victims; the remedy for the bad use of guns in violent crime is the good use of guns in self-defense.

Of course, guns do seem a bit more dangerous than books, and apart from a few anti-pornography feminists, most of us would rather be accosted by a man with a video than a man with a gun. But none of our constitutional rights are absolute. Recognizing that the Second Amendment confers an individual right to bear arms would not immunize guns from regulation; it would require that the government establish a necessity, not just a desire, to regulate. The majority of gun owners, Don Kates suggests, would be amenable to gun controls, such as waiting periods and even licensing and training requirements, if they didn't perceive them as preludes to prohibition. The irony of the Second Amendment debate is that acknowledging an individual right to bear arms might facilitate gun control more than denying it ever could.

But it will not facilitate civic engagement or the community that Americans are exhorted to seek. The civil-libertarian defense of Second Amendment rights is not a republican one. It does not derive the individual right to bear arms from republican notions of the militia; instead it relies on traditional liberal views of personal autonomy. It is a communitarian nightmare. If the war against crime has replaced the Cold War in popular culture, a private storehouse of guns has replaced the fallout shelter in the psyche of Americans who feel besieged. Increasingly barricaded, mistrustful of their neighbors, they've sacrificed virtue to fear.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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