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9/30/2004

DC Gun Laws

The House passed a repeal of DC's gun safety laws, over the strong objection of DC's delegate, Eleanor Holmes Norton. The obvious violation of DC residents' rights to self determination aside, I want to ask a question that has been nagging at the back of my mind since 9/11: How do gun rights advocates escape the spectre of terrorism?

There are two legitimate rationales for supporting an individual right to bear arms:

  1. The interest in self defense;

  2. The interest in opposing tyrannical authority.
The self-defense interest is certainly legitimate, and a corollary interest in gun ownership and a means to defend one's self may have actually grown after 9/11. But the argument for reading this interest into the constitution is decidedly weak, both because of the specific text of the 2nd amendment and the nature of the debates surrounding its passage:
As it is virtually impossible to prove a negative, I cannot claim that none of the proponents of the Second Amendment ever embraced a nonrepublican belief in the right to own arms for self-defense. Yet the dominance of the republican tradition in their thinking about the Amendment makes it unlikely that the primary concern of the provision was self-defense. As I have argued, the discussion of the right to arms was saturated with republican concepts and rhetoric, including the language of the provision itself, with its assertion that "a well regulated militia" is "necessary to the security of a free State." The references to a popular right of resistance are countless; in contrast, the references to an individual right to arms for self-defense are quite rare. I do not mean to argue that one could not construct a modern constitutional argument for a right to own arms for self-defense, or that all eighteenth-century republicans rejected such a right as a matter of general philosophy. Rather, I mean to argue that that right was, for them, a peripheral issue in the debates over the Second Amendment. This secondary status is critical because, as I will argue shortly, under modern conditions an individual right to arms is positively counterproductive to the goals and ideals implicit in a collective right to arms for resistance. As the latter was at the center of the republicans' concern and the former on the periphery, a modern version of a republican Second Amendment would not include a private right to arms for self-defense. [David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 587-588]
There should be a debate about the prudence of gun control (a debate not aided by the dishonest tactics of Lott and his ilk), but it shouldn't involve constitutional considerations. Any foundation for an individual right, then, must revolve around the second rationale: ensuring the ability to oppose tyranny. This rationale, though, has been fatally wounded by both the Oklahoma City bombing and the rise of militant Islamic terrorism.

Characterizing the interest in opposing tyranny as an individual constitutional right confers legitimacy on those who claim to do so. As an individual right, it renders the identification of tyranny entirely subjective. What moral basis, then, do those who support an individual right on anti-tyranny grounds oppose terrorists? I'm really not sure - there is the obvious answer that the US isn't tyrannical, so their violent opposition to it as such isn't correct - but this hinges on an objective evaluation incompatible with most individual rights. The fight with terrorists is reduced to a substantive dispute, but their tactics are given a patina of constitutional legitimacy. If anyone can clarify this for me, I'd appreciate it.

 

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