USA Today Online Poll on Second Amendment

A USA Today poll asking whether the Second Amendment gives individuals the right to bear arms can be found here.

CBS Correspondent Predicts Close Decision Over DC Gun Ban Case with

Even more importantly he predicts that with Kennedy as the swing vote, most gun control will still be allowed. I assume that this isn't the same standard that Kennedy thinks applies to the first and fourth amendments.

One of Justice Anthony Kennedy's law clerks, Orrin Kerr, recently predicted this precise scenario. After declaring that there is an individual right under the Second Amendment, "Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation," wrote Kerr.

It matters what Kerr thinks about Kennedy because it matters what Kennedy thinks about the court. Almost certainly he will be the "5" if the gun case is decided, as most think it will be, through a 5-4 ruling. The litigants surely know this and so will cater their briefs to push the Swing Justice in one direction or the other. But will Kennedy, in the end, be willing to forge the compromise that ends that individual/collective "dichotomy" that Professor Cornell complains about? . . . . .

Thanks to John Lazar for sending me this link.

Ben Wittes on Ditching the Second Amendment

I think that this is a great piece. I think that Ben is exactly right that the debate should be about whether to repeal the amendment. Ben and I will disagree over whether there should be a repeal, but that is the right debate.

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."

Radical stuff, indeed. But there's a big problem with blasting Silberman for entertaining the notion that the people's right to "keep and bear arms" may actually include an individual right to, well, keep or bear a gun in the District of Columbia: None of these words actually come from his opinion. All, in fact, were written by esteemed liberal law professors. . . . . .

Repeal the Second Amendment?

I respect Ben Wittes and this argument is surely the right argument to make for those who don't believe that there should be an individual right to own a gun. While I didn't attend the discussion because I was not invited until the middle of last week, I thought that Randy Barnett's response that repealing the second amendment would open up to question all other constitutional rights was pretty weak (though possibly the reporter just doesn't correctly describe his argument). It is very hard to repeal parts of the constitution and I don't see what harm that it would do to interpret these rights correctly and then have people realize that the only way that they can be changed is through a constitutional amendment.

"The Second Amendment is one of the clearest statements of right in the Constitution," Benjamin Wittes, a guest scholar at the center-left Brookings Institution, acknowledged in a discussion Monday. "We've had decades of sort of intellectual gymnastics to try to make those words not mean what they say."

Wittes, who said he has "no particular enthusiasm for the idea of a gun culture," said that rather than try to limit gun ownership through regulation that potentially violates the Second Amendment, opponents of gun ownership should set their sights on repealing the amendment altogether.

"Rather than debating the meaning of the Second Amendment, I think the appropriate debate is whether we want a Second Amendment," Wittes said. He conceded, however, that the political likelihood of getting the amendment repealed is "pretty limited."

Wittes said the Second Amendment guarantee of the right to bear arms meant more when it was crafted more than 200 years ago than it does today. Modern society is "much more ambivalent than they [the founders] were about whether gun ownership really is fundamental to liberty," he said. . . . . .

UPDATE: Ben Wittes was nice enough to write me and point out that this was indeed not Randy's argument. Ben writes me that "His comments about the dangers of the intellectual arguments against the Second Amendment came not in response to my arguments about repeal but in response to the idea of judicial interpretation that renders the amendment a nullity. His point was that the same intellectual and doctrinal strategies used by gun control supporters in arguing against the individual rights view of the amendment could easily be deployed against any other provision of individual right in the Constitution. While I assume he disagreed with my call for a repeal, I don't believe he addressed the merits of it at all."