How Pro-Choice Activists Are Like Pro-Gun Activists, Cont'd

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

A reader, Michael Jalovecky, takes the thread on yet another tangent—and a good one:

I found myself in agreement with one reader’s comment that “the Constitution guarantees a right [that pro-life and gun-control activists] don’t like, so they make it as difficult as possible to exercise that right.”  Well put. To that I would stretch the comparison to a larger liberal vs. conservative paradigm and highlight that both camps hypocritically apply interpretative theories of the Constitution that suit they’re preferred policy outcomes.

Pro-lifers, which generally are politically conservative, rail against Roe v. Wade as the preeminent example of judicial activism that invented the constitutional right to abortion out of thin air, and that the ruling had no basis in any “original” understanding or reading of the Constitution. Yet, in D.C. v. Heller, conservatives applauded when the Court, through naked judicial activism, overturned 200-plus years of precedent and history and decided for the first time in history that the Second Amendment guarantees an individual rather than a collective right to firearm possession.

Similarly, gun-control activists, which are generally liberal, abhor “originalism” as an interpretive theory for obvious reasons. They embrace Roe v. Wade and its view of the Constitution as a “living document” and applaud judicial efforts to read the Constitution in broader, more modern terms to promote greater conceptions of justice, equality and personal liberty. Yet, when it comes to the Second Amendment, suddenly they’re all Originalists, arguing that it was only intended to protect a collective right to bear arms for purposes of a Militia; and thus the Heller decision was decided incorrectly (in their opinion).  

Well, you can’t have it both ways!  Gun-control activists (i.e. liberals) cannot be Originalists only when it suits their preferred policy outcome. But perhaps that is to be expected if, as Jim Elliott put it: “gun control advocates and pro-life advocates work upon first principles.” Apparently, there’s no harm in being a hypocrite if it’s in defense of your principles.

Update from Jim Elliott:

I have to take slight issue with your reader who asserted that the Supreme Court, in Heller v. D.C., invented “from whole cloth” an individual right to bear arms. A right to individual self-defense was held in common with the idea of a well-regulated militia—you could not have the latter without the former—and was incorporated into the state constitutions of a number of the original 13 colonies.

In 1776, Pennsylvania stated explicitly in Article XIII of its constitution “that people have the right to bear arms for the defence [sic] of themselves and the state.” This language is similar to that of Virginia, also from 1776. A further Pennsylvania provision gave an obligation to Pennsylvanians to keep and bear arms, or provide a fee if they refused due to conscience. Vermont also incorporated similar language. North Carolina and Massachusetts (the first in the Americas) were explicit in the obligation to keep and bear arms as well, linking it directly to the defense of the commons, because at the time there was no distinction between the two.

As early as 1650, Connecticut, New Jersey, and Delaware required all men 16 and over to keep and bear arms. Rhode Island did not require you to own a gun, unless you wanted to attend a public meeting or travel more than two miles, in which case you had to appear with one. South Carolina, while not specific that “armes” meant guns, did require men to be able to appear with them, and in 1743 required every man to carry a gun when attending church. Georgia’s law is confusing but clearly levies fines for failing to appear at the militia’s muster without your own firearm and equipment. From the time of its transfer from the Dutch, New York required all men from 16 to 60 to be keep arms. In Maryland, you could not own land unless you could prove you were armed. Maryland, Virginia, and North Carolina required masters to give firearms, shot, and gunpowder to indentured servants upon the completion of their service.

Indeed, since the beginning of colonization, individuals armed for the defense of the commons was a hallmark of regulation, just as much as the secure storage of them was also regulated. I mean, let’s remember why the British were coming to Lexington and Concord: To seize arms after a spontaneous militia in Massachusetts had prevented John Gage from imposing his will in Boston. While the original states all expressly tied the keeping of arms to an obligation to defend the commons, and there were laws regarding their use (i.e. Pennsylvania actually had a separate article regarding hunting, and Boston had laws regarding careless discharges of firearms), none inhibited the personal possession of arms or their use in self-defense.  

There is also the little matter of the fact that, were your reader correct, the Second Amendment would become the only amendment within the Bill of Rights where “the people” did not have both a collective and individual application. There is no “collective” right to free political speech or religious expression without protection of the individual’s, nor security in one’s own papers and person in some collective sense. It would be sophistry to claim that only in the case of the Second Amendment is the right to keep and bear arms solely based in a need for common defense.

The Supreme Court has made many rulings directly and indirectly affecting the right to bear arms. In Guorko v. U.S., the court struck down jury instructions that told the jurors to consider deliberately arming oneself as indication of premeditation to kill, so long as the individual had armed themselves for the purposes of self-defense. This was re-affirmed by the same court in Thompson v. U.S. Where Heller arguably deviates is from precedence from the Supreme Court (Presser v. Illinois, Miller v. Texas, U.S. v. Miller) that affirmed the ability of states to regulate the carry of firearms.