Gun banners cling to "evolving" view of the Second Amendment

There’s been no shortage of weak arguments about the right to keep and bear arms over the past few weeks, and I’d say that this column by Daily Beast columnist Eleanor Clift is definitely a contender for one of the Top 5 Bad Takes on the Second Amendment that I’ve seen this year. In fact, it’s so bad that I felt compelled to respond to it on today’s Bearing Arms’ Cam & Co, which you can check out in the video window above.

Clift’s argument is simple: there’s overwhelming support for “reasonable” gun restrictions in this country, but Congress has been stymied thanks to the evil machinations of the gun lobby and the Supreme Court, which went against centuries of settled law in 2008 when it ruled in Heller v. D.C. that the Second Amendment protects an individual right to keep and bear arms.

How we got to the Heller decision in 2008 expanding and lionizing gun rights “is a story about political mobilization on the Right in the 1980s. It was a multi-pronged effort by the NRA and its allies to weaken gun laws at the state level, and support academic and opinion pieces that extolled firearms for self-defense,” says Darrell Miller, co-director of the Duke Center for Firearms Law.

“It didn’t fall from the skies with the Heller decision. It was a long, 20-year runway of changing the conversation that culminated in Heller,” says Miller, citing the impact of an article published in the Yale Law Journal in 1989 by constitutional scholar Sanford Levinson, a noted liberal, that was titled, “The Embarrassing Second Amendment.” Levinson chided his fellow liberals for being quick to defend individual rights, like those of criminal defendants, while shunning the Second Amendment. The piece was heralded by conservatives, prominent columnist George Will among them.

Since Heller, a vision of the Second Amendment as an instrument to prevent most gun control has taken hold, “yet no court has ever said that, and no Founder said that. This aspirational vision is something gun rights activists have just made up” says Adam Winkler, author of Gunfight: The Battle over the Right to Bear Arms in America. “It’s their wish and they’ve been fighting to institutionalize it, and they’ve been successful.”

This is, to put it bluntly, a load of crap. First off, as Clift herself acknowledges, support for an individual rights view of the Second Amendment wasn’t confined to “the NRA and its allies.” Even respected liberal legal scholars like Sanford Levinson and Akhil Reed Amar have pointed out that many Americans have long viewed the text of the Second Amendment as protecting an individual right to keep and bear arms, though who exactly we need protection from has changed at various points in U.S. history.

Clift wants to make the case that for most of our history we all concluded that the Second Amendment was a dead letter, but that position isn’t borne out by the evidence, which demonstrates that over the past 250 years our predecessors knew exactly what they were protecting and defending.

In 1776, the authors of the Pennsylvania Constitution declared that “the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination, to, and governed by, the civil power.” Between then and 1998, when Wisconsin changed its state constitution to recognize “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose,” dozens of states have included language in their state constitutions making it explicitly clear that the individual right to possess and carry a firearm is fundamental.

It’s true that there hasn’t been a lot of Second Amendment jurisprudence over the decades, but that’s probably due to the fact that the modern gun control movement didn’t really kick off in earnest until the late 1960s, and we simply don’t have any historical analogues for D.C.’s ban on handguns until the 1970s.

Then there’s Winkler’s asinine statement about the “aspirational vision” of gun rights activists. When you’re fighting for a right, of course you’re going to view it expansively. Until recently, you didn’t hear much talk from, say, the ACLU about the need to restrict the freedom of the press or the right of free speech, even for those most disagreeable opinions out there. Similarly, you don’t see many Fourth Amendment advocates calling for “reasonable” restrictions that would allow for widespread use of “stop-and-frisk” policies.

Substantive rights actually mean something, and that includes our right to keep and bear arms. The reason why gun owners and Second Amendment activists have been waging this multi-decade campaign to push for full recognition of that right is because they’re pushing back on attempts to regulate that right out of existence., and the reason why we’ve been so successful is because most of us understand that the Second Amendment is a real right and not an historical anachronism.

Just look at the sweeping success of the right-to-carry movement since the 1980s. Dozens of states have adopted “shall issue” concealed carry laws, and now fully half of the states have permitless carry laws on the books as well, which means if you can legally own a firearm you can lawfully carry it without first having to get permission from the state. Not one of those states has seen fit to repeal either their “shall issue” or permitless carry laws, and there are now tens of millions of responsible gun owners who are lawfully bearing arms in defense of themselves and others.

Even under an “evolving” view of the Second Amendment, in other words, there’s little evidence that a majority of Americans have suddenly concluded the right to keep and bear arms is a fundamental right protected by the Constitution. If Clift really thinks otherwise, I’d encourage her to start a campaign to repeal it and see how far she gets. I think she’d soon realize that it’s her and her gun-banning friends who are on the wrong side of history… and the Bill of Rights.

Aug 18, 2022 5:30 PM ET