Thursday, August 6, 2009

Cold, dead hands revisited

So I'm reconsidering. (It's a bit too soon to say "overruling.")

Two weeks ago, in a post discussing District of Columbia v. Heller and the Second Amendment, I argued that while the Court was right in Heller to conclude that the Amendment guaranteed an individual, not just a collective right to bear arms, it was wrong in it's analysis of the purpose behind the right. I said it wasn't for self-defense against random bad guys or marauding indians or grizzly bears. It was for self-defense - and affirmative rebellion - both individual and collective, against the government itself. I still think that's right.

I also said, rather confusingly and then corrected, that I thought DC's handgun ban was lawful under the Second Amendment because, "You're not going to stop a coup d'etat with a .22 on the nighttable." That's the part I'm reconsidering.

Of course, the factual claim is correct. The .22 won't be much use in the sort of defense with which the Second Amendment was concerned. But the test of a limitation isn't whether it doesn't much help with a right, it's whether it's irrelevant to it. An armed citizenry is the whole point, and to say that the protections of the amendment provide only to powerfully armed citizens is just silly. You can have a tank but not a pistol? I don't think so.

Which takes us to Plaxico Burress. You know, he's the football player who accidentally shot himself in the leg in a New York City nightclub with a gun he was, in violation of New York law, carrying in his waistband. He was arrested and has now been indicted on two counts of Criminal Possession of a Weapon and a single count of Reckless Endangerment. The possession charges are serious felonies.

For a while now, Doug Berman has been hammering the point that Second Amendment supporters ought to be rushing into this fray and arguing that New York's concealed carry law, which basically what's at issue here, violates the Second Amendment, especially in light of Heller. Scott Greenfield, who suggests he's no fan of concealed carry, signed on to the campaign today.

I made my general position clear two weeks ago: "I grew up a Jewish kid from New York, and I don't like guns." But like Scott, I do like the Constitution. And even if I weren't a fan, I think we need to hold the government to it. So what's the proper status of concealed carry as a mechanism for protecting yourself against the government?

Indeed, I might ask what's the proper status of concealed carry at all?

Yes, you can carry a gun. No, you can't be reckless in how you handle it. (Shooting yourself in the leg in a public place is, I think, reckless, which makes Burress properly guilty of a misdemeanor.) But why concealed?

Because we can? That's not an answer.

So businessmen and women can be armed discreetly, with guns in their briefcases rather than on their hips? No, that's not a constitutionally relevant reason.

So the government agents won't know who's armed and who's not and they'll have to think twice? Maybe. I'm open to plausible argument on that one.

For the time being, call me an agnostic on concealed carry laws.

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