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."

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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 a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Follow him on Twitter.