by David Kopel
Boulder Weekly, July 2-8, 2009. More by Kopel on interstate carry.
Should liberals respect the constitutional right to keep and bear arms? The answer is plainly "yes," especially if liberals adhere to their traditional best principles of tolerance and diversity, and of respect for civil liberties under a living Constitution.
In this regard, Democratic Sen. Mark Udall has been setting a good example. As a lifelong Democrat who has voted for Udall again and again, I was impressed by his strong stance on civil liberties, including his courageous vote in 2001 against the misnamed PATRIOT Act. In the U.S. House, Udall's record on Second Amendment rights had been mixed, but, as he explained, he began to re-evaluate his understanding of this issue after the 2007 decision by the D.C. Circuit Court of Appeals, which held that the Second Amendment really does guarantee a meaningful individual right. That decision was affirmed by the U.S. Supreme Court in the 2008 case, District of Columbia v. Heller.
In the half-year that Udall has served as U.S. Senator, he has compiled a strong record on Second Amendment issues. He voted for an amendment to stop the practice of Amtrak (the federally subsidized railroad), which prevented passengers from transporting unloaded firearms in their checked luggage.
Since the Constitution gives Congress plenary authority over the District of Columbia, Sen. Udall also voted to repeal various abusive gun laws in D.C. At present, D.C.'s licensing and registration process for handgun owners is even more cumbersome and obstructive than that of New York City.
In addition, Udall voted for another amendment, which says that national parks will follow the same policy regarding firearms as their host state. So, for example, in Colorado, if you go camping deep in the outback of a Colorado State Park, state law says that you can carry a concealed handgun for protection from violent criminals or hungry carnivores — provided that you have obtained a permit, which requires a fingerprint-based background check, plus passing a safety class. Now, thanks in part to Sen. Udall, the same rule will apply in Colorado's national parks, such as Rocky Mountain National Park, starting next February.
Sen. Michael Bennett, by the way, voted the same way on all these measures.
The Udall/Bennett approach makes perfect sense for genuinely liberal Democrats. After all, the party itself was founded by James Madison, who wrote the Second Amendment, and by Thomas Jefferson, a strong advocate for all the Bill of Rights, including the right to arms.
Today, many liberals are not concerned with the original meaning of the Constitution. Instead, they favor a "living Constitution," by which constitutional standards reflect modern conditions and evolving standards of the American public. By this standard, the right to arms is especially important.
Since 1963, the people of Alaska, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Louisiana, Maine, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Utah, Virginia, West Virginia and Wisconsin have chosen, either through their legislature or through a direct vote, to add a right to arms to their state constitution, to re-adopt the right to arms or to strengthen an existing right.
In every state where the people have had the opportunity to vote directly, they have voted for the right to arms by overwhelming margins. For example, in 1998 liberal Wisconsin adopted an arms-right guarantee by a vote of 1,205,873 to 425,052.
Thus, the American people continue to reject that notion that the right to arms is "obsolete" and should be ignored. Even before the Heller decision was announced, the Gallup Poll found that 73 percent of Americans believed that the Constitution guaranteed an individual, non-militia right to arms. A 2009 Gallup Poll found that support for banning handguns had dropped to only 29 percent — the lowest level since Gallup began polling the issue half a century ago.
Hurricane Katrina provided a vivid reminder that in an emergency, you cannot always count on the government for protection. In the days after the hurricane hit, the incompetent federal, state and local governments did nothing to protect the good people of New Orleans from rampaging looters and murderers. Instead, the administrations of New Orleans Mayor Ray Nagin and President George Bush teamed up to send armed officers house to house to break into homes and confiscate firearms.
As a federal court later ruled, the Bush-Nagin gun confiscation was totally illegal. Illinois Sen. Barack Obama and Colorado Sen. Ken Salazar were among the many liberals who voted for a reform so that the federal government — and any local law enforcement agency that gets federal funds — will never again perpetrate such an atrocity.
Liberalism at its best embraces tolerance and diversity. So, for example, a tolerant liberal would recognize the conscience rights of religious pacifists not to be drafted into combat and their right to choose not to use a firearm to protect themselves. At the same time, tolerant liberals would resist the efforts of "pacifist-aggressives" who want to impose their own anti-self-defense morality on everyone else.
Indeed, if you favor choice, you can't coherently oppose the right to arms. In the article Principles and Passions: The Intersection of Abortion and Gun Rights, Fordham law professor Nicholas Johnson shows that all the pro-choice arguments in favor of a right to abortion can be applied, even more strongly, to the right of armed self-defense. If a woman can make a momentous decision about controlling her own womb, she can make the decision to protect her family from a violent criminal intruder. Other people have the right to express moral disapproval of her self-defense decision, but not to criminalize it.
Today's Democratic majorities in Congress and the Colorado legislature would not exist if Democrats from the Rocky Mountains states, and most of the rest of the country, were still stuck with the culture wars of the 1990s. Back then, narrow-minded cultural elites from the northeast and California tried to use the Democratic Party to impose their narrow-minded, anti-gun biases on the rest of the country.
Today's liberal, strongly pro-Second Amendment Democrats — such as New Mexico Gov. Bill Richardson, Montana Gov. Brian Schweitzer, and Wyoming Gov. Dave Freudenthal — are carrying on the tradition of the man who is one of the Founders of modern liberalism, the great Democratic Senator and Vice-President Hubert Humphrey. As Humphrey put it: "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizen to keep and bear arms. This is not to say that firearms should not be very carefully used and that definite rules of precaution should not be taught and enforced. But the right of the citizen to bear arms is just one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible."
Soon, the Senate may be voting on a new civil rights measure. Pro-GLBT, pro-Second Amendment advocates, such as Pink Pistols, are pushing for a bill to stop gay bashing before it starts. The bill would simply say that a concealed handgun carry permit issued by one state would be valid in the other 47 states that allow concealed carry. So, for example, a gay person from Denver who has a Colorado permit to carry a concealed handgun for lawful protection could carry that same handgun when he visits California or Mississippi.
It's a dangerous bill — from the point of view of gay bashers and other violent criminals.
Dave Kopel is Research Director of the Independence Institute, and co-author of the law school textbook Gun Control and Gun Rights (NYU Press).