Law Students

Why Is The Second Amendment Different Than The First?

By Casebook Sherpa

Dr. Bombay is convinced that I’m going to walk in one day and, much to his delight, burn my Right Wing Conspiracy Membership Card in front of our Torts class. That’s not about to happen, but several beliefs of my conservative brethren do give me pause.

Since BigShow has joined in the fray here at Fight The Hypo and since the Supreme Court is in the middle of considering its first Second Amendment case in decades I thought I’d begin the painful process of revealing my drift from certain tenets of modern conservative orthodoxy (to the extent one can “confess” to something pseudonymously anyway).

Let me start with a gross generalization… why is it that the very people who support limits on First Amendment rights oppose limits on Second Amendment rights? It’s as if some say, “No, you can’t burn that flag, but here’s an AK-47 to protect yourself and, in the meantime, hunt some deer.”

Say what? Hopefully we’ll hear from our Second Amendment friends on this, but hear me out…

Can’t you make the same public order justification for limits on Second Amendment rights that you can make on First Amendment rights? If you argue that the Founders did not intend to protect child porn with the 1st amendment can you credibly argue that they did intend to protect ownership of a TEC-9 with the 2nd Amendment?

I’m a believer in the individual’s right to own a gun (as opposed to the view that the 2nd Amendment was intended simple to allow formation of militias). I enjoy hunting and sporting clay shooting. I simply have a problem doing what the NRA seems to ask of me: conflate the right of someone to own a gun with an absolute license for anyone to own any gun.

Why can’t we seem to find agreement on sensible regulations? Doesn’t it make sense to require registration? Can we agree that the law should presume someone with profound mental illness should not buy a gun at a state fair? Why should we not require trigger locks on guns kept in houses with children under 15 (or whatever age is reasonable)?

For some reason none of that “makes sense” in our current political climate. And despite the research and writing I’ve read to the contrary, I still have serious concerns with how easy it seems to be to purchase firearms. Call me the great skeptic (squishy moderate? cocktail conservative?), I guess.

More broadly than my tepidness on the issue, I think, is that the lack of any real movement on gun regulation has much to do with trust of gun control champions and commitment to what seems to be abstract notions of force.

Gun owners simply do not trust politicians when they say that we need sensible controls on gun ownership - particularly rural gun owners when they hear urban, northeast, liberal politicians say it. This mirrors how distrust erodes public discourse generally. On the issue of climate change, for instance, entire swaths of voters - on all sides - have suspended critical reasoning about the issue simply because Al Gore is championing his point of view so visibly and effectively.

The lack of trust is also related to this sense that the absolute right to gun ownership is necessary to counterbalance the monopoly on force held by the state. I get that and agree with it in principle. I’m not so naive to think that this country will always be a freedom and rule of law-valuing democracy. The trouble with this view, though, is that if we need guns to resist state power and tyranny (should it ever come to that), we’re gonna need rocket launchers, anti-tank mines, shoulder fired missiles, warehouses full of ammo…. As the government’s weapons get better, shouldn’t the citizen’s right to secure bigger, better arms expand accordingly? That doesn’t make sense to me.

So what do we do?

Full post as published by Fight The Hypo on February 20, 2008 (boomark / email).