Ditch the Second Amendment

The New Republic, March 19, 2007

The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.’s ultra-strict gun-control law of storming “blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety.” My former colleagues at the Washington Post described the decision as a “radical ruling” that “will inevitably mean more people killed and wounded as keeping guns out of the city becomes harder.”

It’s not hard to see where the anger comes from. The two-to-one decision by the famously conservative Judge Laurence Silberman is, indeed, radical. Consider the following:

  • The “central object” of the Second Amendment “is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. … [T]he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification. … That assurance in turn is provided through recognizing a right … on the part of individuals to possess and use firearms in defense of themselves and their homes.”
  • “For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.”
  • While at the Founding, the Second Amendment may have embodied a “collective” right, after the Civil War amendments, the constitutional landscape changed dramatically, and “gun-toting was individualistic, accentuating not group rights of the citizenry but self-regarding ‘privileges’ of discrete ‘citizens’ to individual self-protection.”

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