An Answer for Marty

Slate's blog on legal issues.
March 18 2008 9:57 PM

An Answer for Marty

Marty , I wasn't making an argument about constitutional interpretation but about constitutional theory.  In other words, not "what is the right outcome of the Heller case?", but "would we want to put gun rights in the Constitution if we were to start from scratch?"  The second question is not altogether irrelevant to the first; at least, some people seem to think that the answer to this question might help answer the first question.  That's why these arguments about bears and saber tooth tigers are being bruited about.  But I'm not at all interested in the first question.

From the perspective of the second question, let's take this argument made by Kennedy: "the right of people living in the wilderness to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."


The constitutional theory question is not whether it would be right or wrong to deprive the remote settler of the means to defend himself, but whether there is any reason to think that the government would take away his guns without a good reason-or as you put it, to think that the type of government overreaching that we properly worry about would extend to regulation of gun-toting settlers who live in the wilderness.  I certainly can't think of any.  Remote settlers are not the sort of people who are usually discriminated against; nor are they the sort of people who threaten a government's hold on power-quite the contrary.  Do we think that Congress or the Alaskan state legislature has any interest in sending agents to the wilds of Alaska in order to confiscate the guns of remote settlers?  Is the idea that the government has been captured by the grizzly bear lobby, or that settlers are treated as second-class citizens?  Maybe the settlers have a longstanding complaint that the U.S. government discriminated against them by failing to slaughter the Indians fast enough?  Does it count that the U.S. government and the thinly populated states have been subsidizing settlers for centuries-by offering free land, protection from out-of-state creditors, and tax benefits?  It's hard to imagine a more cosseted group than our hardy band of settlers.

I can't top Dahlia's skill at ridiculing bad arguments, and I don't think I need to persuade you,  either.  If this is actually what the founders believed, so much the worse for them.

As for your last point, I was making a point about the "natural right" argument discussed in an earlier post  by Doug  Kmiec, not to constitutional rights (which you run together, but they are different, of course).  "Natural right" is just a fancy way of saying that there is a moral reason to (in this case) let people keep their guns, namely, so they can protect themselves.  As I said, there is also a moral reason to take away guns: to protect the rest of us.  So natural rights thinking doesn't provide the basis of a constitutional right to own guns.  It is indeterminate; another reason to leave the issue to politics.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.



Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS

But the next president might. 

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Altered State

The Plight of the Pre-Legalization Marijuana Offender

What should happen to weed users and dealers busted before the stuff was legal?

Surprise! The Women Hired to Fix the NFL Think the NFL Is Just Great.

You Shouldn’t Spank Anyone but Your Consensual Sex Partner

Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Altered State
Sept. 17 2014 11:51 PM The Plight of the Pre-Legalization Marijuana Offender What should happen to weed users and dealers busted before the stuff was legal?
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
Dear Prudence
Sept. 18 2014 6:00 AM All Shook Up My 11-year-old has been exploring herself with my “back massager.” Should I stop her?
  Double X
The XX Factor
Sept. 17 2014 6:14 PM Today in Gender Gaps: Biking
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
Brow Beat
Sept. 17 2014 8:25 PM A New Song and Music Video From Angel Olsen, Indie’s Next Big Thing
Future Tense
Sept. 17 2014 9:00 PM Amazon Is Now a Gadget Company
  Health & Science
Medical Examiner
Sept. 17 2014 11:48 PM Spanking Is Great for Sex Which is why it’s grotesque for parenting.
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?