Ben Wittes on Ditching the Second Amendment
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. . . . . .