The Myth of Second Amendment Exceptionalism

We make tradeoffs in personal liberties all the time. Why is gun control any different?

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Organized by the Second Amendment March group, about 500 pro-gun demonstrators rally near the Washington Monument April 19, 2010, in Washington, D.C.

It’s a familiar drill for millions of travelers: bare feet shuffling on a cold floor, belt off, emptied pockets, personal effects exposed for maximum humiliation. This surely constitutes an unreasonable search and seizure without probable cause, explicitly prohibited by the Fourth Amendment. Yet we cede this constitutional right to the executive authority that controls our borders millions of times every day.

When it comes to protecting freedom, Americans, including those on the Supreme Court, recognize that personal liberties must often be modified for the safety and protection of others. Yet today’s gun rights advocates routinely cite the Second Amendment of the constitution—the right to bear arms—when threatened by commonsense proposals to limit, but not eliminate, modern-day weaponry. Constitutionally protected freedoms are routinely curtailed in the name of public safety, morality, or even convenience. Our right to free speech is routinely regulated through obscenity laws. Slander, libel, pornography; we’re muzzled all the time. So, too, are our rights to assembly and religion compromised. You can’t stage a protest at noon in the middle of Times Square. A parent can’t deny a child lifesaving medical care or education.

(MORE: Viewpoint: If We Want Gun Control, We’ll Need to Compromise)

We’re also willing to cede our more prosaic rights — to drive at maniacal speeds, pollute our waterways, blow cigarette smoke in people’s faces, not wear seat belts or helmets, and on and on — because, mostly, we hold the sensible view that our right to freedom is tempered by someone else’s right to be free from our injurious, costly escapades. But while our current reverence for the Second Amendment seems to go back to the founding fathers, it’s actually evolved over time and reflects cultural norms honed over several decades by lobbying and public relations groups.

As reported in The Atlantic‘s “Secret History of Guns”, in the 1930s, the National Rifle Association’s president Karl Frederick believed the right to own guns was found “in an enlightened public sentiment and in intelligent legislative action. It is not to be found in the Constitution. In the 1960s, in the wake of race riots, Republican governor Ronald Reagan saw, “no reason why on the street today a citizen should be carrying loaded weapons.” As recently as 1991, former Chief Justice Warren Burger, a conservative Republican and strict judicial constructionist, said that the concept of a constitutionally-protected individual right to bear arms was “one of the biggest pieces of fraud—and I repeat the word fraud—on the American public by a special interest group that I have seen in my lifetime.” Less than twenty years later, in 2008, the work of those special interest groups was rewarded when the Supreme Court struck down Washington, D.C.’s gun control law.

Today, guns seem almost as American as apple pie. In my adopted state of Vermont, for example, a place widely held to be on the liberal fringe, hunters still have the right to use firearms on privately owned land without the property owner’s permission. Homeowners who don’t want strangers shooting in their backyards must register at the Town Hall, at their own expense and inconvenience, and post fliers on their land at regular intervals specifying that firearms are not permitted. We’ve imbued the Second Amendment with such disproportionate magnitude compared to other judicial protections that in 1982, a respected Senator, Orrin Hatch, could proclaim, apparently without irony, that the right to bear arms is the right “most valued by free men.”

(MORE: In the Shadow of Sandy Hook, a Powerful Pro-Gun Organization Stays Silent)

Like so many other rights, is possible to imagine curtailing this one without giving it up. The “slippery slope” argument against doing so is specious. Regulating the right to bear arms will not lead inexorably to its abandonment, just as raising the drinking age from 18 to 21 did not result in increased calls for prohibition. Instead, a tradeoff was made between the right of a 19- or 20-year-old to buy a bottle of vodka and the right of our society not to bear the costs of mayhem at the hands of a younger adolescent with a new driver’s license and an immature frontal lobe.

We make these compromises every day, and somehow the sky does not fall. But gun activists want an exemption from the cost of citizenry. Why should we pay such a high price for their freedoms if they wish to pay no price for ours? Last Friday in Connecticut, the bill came due, and it’s time for the NRA to pay.

MORE: How Guns Won