Wednesday, June 30, 2010

The Embarrassing 2nd Amendment.

Had a nice glass of wine last night, and re-read one of my favorite essays, by one of my most favoritest lefties....Sandy Levinson, of the UT-Austin Law School.

Here is the essay: The Embarrassing 2nd Amendment.

Sandy (whom I got to know down at UT-Austin when I was there) is honest. He does not like the 2nd Amendment. But he believes in the rule of law, and so feels obliged to point out two things.

First, the words in the 2nd Amendment have meaning. They appear to mean that there is an individual right to keep and bear arms. Subject to regulation, not an absolute right, all that's true. BUT. SOME. INDIVIDUAL. RIGHT.

Second, we can't pick and choose which amendments to enforce. If the Bill of Rights is important, if the Constitution cannot be violated, then we have to enforce all of it. If you don't like the 2nd Amendment, then amend the Constitution.

I enjoyed re-reading the piece, as I said, given the events of this week. I particularly liked these passages:

To put it mildly, the Second Amendment is not at the forefront of constitutional discussion, at least as registered in what the academy regards as the venues for such discussion — law reviews, casebooks, and other scholarly legal publications. As Professor Larue has recently written, "the second amendment is not taken seriously by most scholars."

...I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay — The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.


Give Sandy credit: that is an honest portrayal of the problem. He at least realized that he should be embarrassed. And he was.

For two decades, I have been given at best a condescending hearing when I have claimed that the 2nd Amendment clearly confers at least a limited individual right to bear arms. And since these same super-silly-ass folks also claim to believe the Constitution says what the Supreme Court says it says....well, I love America.