If you first started to follow the Second Amendment in 2008, you would think that Justice Scalia invented the entire argument about the Second Amendment out of whole cloth, and only conservative historians bought and paid for by the NRA agreed. But this revisionism (which is all too common in popular discourse) ignores the fact that one of the earliest, yet reluctant, supporters of the individual right to keep and bear arms was Sandy Levinson. His article, The Embarrassing Second Amendment, put the individual model onto the wall, to borrow Jack Balkin’s lingo.
Sandy posted an essay at the ACS Blog titled “Making Peace with the Second Amendment.”
My own view is that District of Columbia v. Heller was probably (though not certainly) rightly decided, though I despise Justice Scalia’s opinion for the majority, which I regard as a thoroughly meretricious reading of the text and of the relevant historical materials. But, obviously, I think that a far better opinion could have been written, emphasizing both the civil republican strain in American political thought plus the vitality of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment to arrive at the same basic result, i.e., the presence in the Constitution of at least some right, guaranteed against the national government, of law-abiding Americans to possess handguns at least within their own homes. The issue of “incorporation” of this right against the states, which occurred in McDonald v. City of Chicago, is trickier, but, to put it mildly, there is something paradoxical about political liberals suddenly becoming hesitant to incorporate an important provision of the Bill of Rights against regulation-prone states.
I deeply admire Sandy’s candor and intellectual honesty. This is likely a result he doesn’t like, or at the least, doesn’t agree with, but he agrees the text of the Constitution gets him there. (I’m not sure how the Privileges or Immunities Clause, which only binds the states, would have made a lick of a difference in Heller, but I digress).
As suggested at the outset, though, I think there is a second way to answer the question, which boils down to a combination of what is best for political progressives. Here I have little trouble agreeing with David Cole, among others, that it is time for us to make our peace with Heller and recognize that most Americans believe that there is a protected constitutional right to possess at least some firearms even as most Americans also support sensible regulation. Too many “Reagan Democrats” emigrated to the Republican Party because of an accurate perception that political progressives disdained their desire to own handguns and other weapons for perfectly peaceful purposes (or for legitimate self-defense within the home). Acceptance of Heller and McDonald does not require joining the N.R.A. and does allow support, say, of enhanced background checks of those who would purchase guns.
But political progressives especially might ask why all former felons—think of Martha Stewart—should be deprived of the right to own a handgun in their own homes or why illegal aliens can be required to forfeit what the Supreme Court has declared the “fundamental right” of self-defense with a firearm within the home?
I also appreciate his sound observations that opponents of the right to keep and bear arms should get over Heller, and stop fighting a battle they will lose, both on the Court, and in the American populace. Hint, hint Justice Stevens.
Plus, I couldn’t agree more. Aliens and non-violent felons should not be denied this right.