Gun Rally

By Adler, Ben | Newsweek, March 8, 2010 | Go to article overview

Gun Rally


Adler, Ben, Newsweek


Byline: Ben Adler

Liberals and the NRA have found common cause in a pending supreme court case.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

When the constitutional accountability Center launched in 2008, it looked like just another liberal legal-advocacy group, dedicated to "fulfilling the progressive promise of our Constitution's text and history." The causes it has backed run the standard liberal gamut: among other things, the group supports California's efforts to regulate carbon emissions and pushes for "robust due-process protections for immigrant criminal defendants." So if you were told that the CAC had filed an amicus brief in McDonald v. Chicago, a case about gun control to be argued before the Supreme Court this week, you might think it was siding with Chicago, whose restrictions on gun ownership are being challenged.

You would be wrong. For decades, liberals have opposed gun rights on the grounds that the Second Amendment is limited to the establishment of state militias. But some liberal dissenters from this view now say that is too narrow a reading of the Constitution. They contend that it fails to take into account the historical record and contradicts liberals' own reading of the Constitution's protection of individual rights.

The CAC has joined forces with staunch conservatives, including Steven G. Calabresi, cofounder of the Federalist Society, to support expanding individual rights, including gun rights, in the states--inviting the possibility that Chicago's virtual ban on handguns might be overturned. "There is a deeply progressive historical basis for some individual right to bear arms," says Douglas Kendall, the CAC's founder.

This is still far from the standard liberal view. But Kendall does have allies. Some sharp liberal legal minds are part of his campaign to reverse and embrace the right to gun ownership. "I believe in an individual right to bear arms, consistent with a living Constitution," says Adam Winkler, a professor of law at UCLA and a frequent participant in the American Constitution Society, the liberal answer to the Federalist Society. Winkler was one of eight scholars, including other prominent liberals, who signed the CAC's brief in the McDonald case.

What is going on here? For much of the nation's history, Kendall and his supporters argue, the right to bear arms was considered essential to citizenship. "Forty-two states in their state constitutions provide protections for the right to bear arms," says Winkler. "It is one of the longest-standing, most deeply entrenched rights in American history."

At the heart of the left-leaning dissenters' argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes--even if it does not explicitly spell out--a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? "The right to bear arms gives you a mechanism to protect your bodily autonomy from attack," says Winkler.

The CAC's main concern in weighing in on the McDonald case isn't to secure gun rights but to set a precedent that will expand individuals' protection under the Bill of Rights to the state level. That would, they hope, bolster liberal constitutional arguments in favor of stronger due-process and abortion-rights protections.

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