Today the President of the United States gave a speech about gun control measures. I don't intend to critique those measures. Nor do I mean to critique his rhetoric about gun violence. I do intend to critique his language about rights, because how our leaders discuss rights can have a powerful impact on how Americans understand rights.
Here we go.
Now, I want to be absolutely clear at the start. I have said this over and over again — this also becomes routine. There is a ritual about this whole thing that I have to do. I believe in the Second Amendment. It is there, written on the paper, it guarantees a right to bear arms. No matter how many times people try to my words around, I taught constitutional law, I know a little bit about this.
The President is invoking my Trope Eight, appeal to the authority of a law professor. Here's the problem: law professors have a habit of taking what they think the law should be and portraying it as what the law is. There are many principled law professors who make a sincere effort to avoid such disguised advocacy. But the fact that the President is a law professor doesn't make his views on the contours of rights reliable.
I get it. But I also believe we can find ways to reduce gun violence consistent with the Second Amendment. I mean, think about it — we all believe in the First Amendment, the guarantee of free speech. But we accept that you cannot yell "fire," in a theater. We understand there are some constraints on our freedom in order to protect innocent people.
Here the President invokes two tropes. There's Trope Three, "rights aren't absolute." This is perfectly true. Moreover, at the risk of calling down ten thousand butthurt commenters, there's no colorable basis to view the Second Amendment as absolute when courts have recognized exceptions to the rights conferred in other amendments. The Supreme Court only very recently recognized that Second Amendment rights are individual rights, and jurisprudence exploring the boundaries of those rights is therefore decades behind.
But observing that rights aren't absolute doesn't establish that any given law is constitutional. It's at best a start to the discussion, not an end.
The President also invoked my least favorite trope, Trope Two, "shouting fire in a crowded theater." He didn't even fully invoke it, only mentioning "fire in a theater," calling to mind a malicious effort to disrupt a showing of Glitter or something. The important thing is that the trope is just a rhetorical flourish used to repeat that not all speech is protected, culled from a case in which the Supreme Court contemptibly approved of jailing a man for protesting the draft in World War One. It's a throwaway line from a case that is now universally recognized as wrongly decided. It's a line about rhetoric, not law. Using it doesn't send the signal "I will propose principled, text- and history-based exceptions to the rights conferred by this amendment." It signals "exceptions to rights can be shaped by the whims of the majority and by the fears of the moment." That's a foolish message in this instance.
We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It's not because people like doing that, but we understand that is part of the price of living in a civilized society. And what's often ignored in this debate is that the majority of gun owners actually agree — a majority of gun owners agree that we can respect the Second Amendment while keeping an irresponsible, lawbreaking feud from inflicting harm on a massive scale.
Here the President is again invoking "rights are not absolute" with another example. And it's a terrible example. The TSA offers security theater, not security. When we give up our right to privacy to be groped and scanned, we're giving it up so that politicians can say they are doing something, not to make ourselves safer. It's therefore a poor comparison to use to support a gun control program already being criticized as mere window-dressing.
The President also offers an appeal to the masses, citing the constitutional wisdom of a majority of gun owners. I should find a First Amendment example and add that to my trope list. Rights protect us from the majority; they aren't curtailed by the views of the majority, thank God.
All of us should be able to work together to find a balance that declares the rest of our rights are also important. Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them, because our right to worship freely and safely — that right was denied to Christians in Charleston, South Carolina.
And that was denied Jews in Kansas city, and that was denied Muslims in Chapel Hill and Sikhs in Oak Creek. They had rights too.
Our right to peaceful assembly, that right was robbed from moviegoers in Aurora and Lafayette. Our inalienable right to life, and liberty and the pursuit of happiness, those rights were stripped from college kids in Blacksburg and Santa Barbara, and from high- schoolers in Columbine, and from first graders in Newtown.
Here the President is invoking the Second Amendment equivalent of Trope Five, saying that Second Amendment rights must be balanced with other rights. If he said that about the First Amendment, I'd say he's flat wrong. Is he wrong with respect to the Second Amendment? That's too big a question for this post. I'll just point out that it's rhetorical move that you should notice — that the proposition that we determine individual rights by balancing them with other interests is not true of at least some rights and not self-evidently true about Second Amendment rights.
The President's invocation of the rights of crime victims is a variation on the "balancing" trope. He accomplishes it by deliberately conflating different meanings of the word "rights." A constitutional right — like the one recognized by the Second Amendment — is a right to be free of government interference, a negative right. The right not to be subjected to criminal behavior by non-government actors is something else. It's not just invoked as a negative right — that is, President Obama isn't saying "you have the right to sue the estates of the killers because you had the right not to have your loved ones murdered by them." It's an ambiguous kind of positive right — the purported right to have the government do something to other people. In that sense it's like a right not to be offended, which must necessarily be enforced by the government silencing people who offend you. It's also familiar to criminal defense lawyers, who have seen it in the guise of "victim's rights."
What do you have the right for the government to do to support your right not to be attacked by crazed killers? I submit that there's no way to tell, and that the purported right impacts many parts of the constitution. Does your right not to be killed mean you have a right to demand that the government prevent me from having a gun, because (as I've discussed openly) I fight depression? Does your right to life create an obligation for the government to sentence criminals to longer sentences and not to let them out on parole? Does your right to life mean that more mentally ill people should be involuntarily confined and treated? I don't know, and I don't think that you know, either — because I think the right to have the government do things to other people for you is made up.
How broad is the individual right recognized by the Second Amendment? I don't know. I don't pretend to be a Second Amendment scholar, and we're starting nearly from scratch with the analysis. I suspect that the courts will find that the Second Amendment doesn't let you do whatever you want in connection with weapons, that it allows some forms of regulation of their ownership and use, and that both gun control advocates and Second Amendment advocates won't like the result.
But rights matter. The way we talk about them matters. You can't engage in unprincipled analysis of one amendment and expect it won't impact our rights under another amendment. The President's rhetoric was moving and heartfelt and, as a matter of what policy should be, ably argued. But it wasn't a good discussion of rights.
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