The right of the people to keep and bear Arms shall not be infringed

In a landmark civil rights decision, the Supreme Court ruled today that the Second Amendment to the United States Constitution does, in fact, create an individual right of firearms ownership for American citizens, striking down the District of Columbia's strict gun control laws:

[The Court] said that the government may impose some restrictions on gun ownership, but that the District's strictest-in-the-nation ban went too far under any interpretation.

Scalia wrote that the Constitution leaves the District a number of options for combating the problem of handgun violence, "including some measures regulating handguns."

"But the enshrinement of constitutional rights necessarily takes certain policy choices off the table," he continued. "These include the absolute prohibition of handguns held and used for self-defense in the home."

The court also held unconstitutional the requirement that shotguns and rifles be kept disassembled or unloaded or outfitted with a trigger lock. The court called it a "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense."

Supreme Court Strikes Down D.C. Gun Ban (Washington Post, 26 June 2008)

This is the first time in U.S. history that the Supremes have deigned to comprehensively interpret the Second Amendment, and the decision, which establishes that the Second Amendment protects individual rights (just like the other nine amendments comprising the Bill of Rights) is historic and highly significant.

Related: Full text of the Supreme Court decision in District of Columbia et al v. Heller (PDF)

Excerpt from decision syllabus:

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

To check the expression of opinions that we loathe and believe to be fraught with death?

[Anthony Lewis, the former New York Times columnist] wrote that there was “genuinely dangerous” speech that did not meet the imminence requirement [of what was considered outside the realm of First Amendment protection.]

“I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Mr. Lewis wrote. “That is imminence enough.”

Harvey A. Silverglate, a civil liberties lawyer in Cambridge, Mass., disagreed. “When times are tough,” he said, “there seems to be a tendency to say there is too much freedom.”

“Free speech matters because it works,” Mr. Silverglate continued. Scrutiny and debate are more effective ways of combating hate speech than censorship, he said, and all the more so in the post-Sept. 11 era.

“The world didn’t suffer because too many people read ‘Mein Kampf,’ ” Mr. Silverglate said. “Sending Hitler on a speaking tour of the United States would have been quite a good idea.”

Mr. Silverglate seemed to be echoing the words of Justice Oliver Wendell Holmes Jr., whose 1919 dissent in Abrams v. United States eventually formed the basis for modern First Amendment law.

“The best test of truth is the power of the thought to get itself accepted in the competition of the market,” Justice Holmes wrote.

“I think that we should be eternally vigilant,” he added, “against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

American Exception: Unlike Others, U.S. Defends Freedom to Offend in Speech (New York Times, 12 June 2008)

Tough crowd

Significant arrests for joke-telling probably began in 1933, when “anekdot-telling” is first described as an anti-Soviet activity in the proceedings of the Communist Party at the Central Committee Plenum of January 1933. Matvei Shkiriatov, a Stalinist zealot and future member of the Central Committee, gave a speech which presaged the purges of the Great Terror, warning of “those within our ranks who ... go about clandestinely organising operations against the party”. Among the activities of these unwelcome communists he declared: “I would like to speak of one other anti-Party method of operation, namely, the so-called jokes [anekdoty]. What are these jokes? Who among us Bolsheviks does not know how we fought against Tsarism in the old days, how we told jokes in order to undermine the authority of the existing system? ... [Now] this has also been employed as a keen weapon against the Central Committee of the party.”

As the arrests began, the joke-tellers imagined the following scenario:

A clerk hears laughing behind the door of a courtroom. He opens the door. At the other end of the room the judge is sitting on the podium convulsed in laughter.

“What’s so funny?” asks the clerk.

“I’ve just heard the funniest joke of my life,” says the judge.

“Tell it to me.”

“I can’t.”

“Why not?”

“I just sentenced someone to five years’ hard labour for doing that.”

Comedy of terrors (Financial Times, 30 May 2008)

Everything's relative

The US “war on terror” has restricted the freedom of individual Americans – but to a lesser degree than in previous conflicts, a study said on Monday.

Freedom House, a US group best known for its work overseas, expresses “grave concern” at measures such as extraordinary rendition, “mistreatment of those in US custody” and warrantless wiretaps.

But it says: “The war on terrorism has resulted in ­significantly fewer violations of individual freedom than previous conflicts.”

The other incidents it cites include the mass detention of Japanese-Americans during the second world war, and Federal Bureau of Investigation and Central Intelligence Agency investigations of thousands of US ­citizens opposed to the Vietnam war.

Report warns of threats to freedom in US (Financial Times, 5 May 2008)

Related:

• Freedom House
  
• "Today's American: How Free?" at Freedom House
  

It's not America, it's an island off the coast of America

Lawyers for Mayor Bloomberg are asking a judge to ban any reference to the Second Amendment during the upcoming trial of a gun shop owner who was sued by the city. While trials are often tightly choreographed, with lawyers routinely instructed to not tell certain facts to a jury, a gag order on a section of the Constitution would be an oddity.

Gag on 2nd Amendment is City's Aim in Guns Suit (NY Sun, 9 May 2008)

Nah, no way this is going to be abused

Microsoft has developed a small plug-in device that investigators can use to quickly extract forensic data from computers that may have been used in crimes.

The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB "thumb drive" that was quietly distributed to a handful of law-enforcement agencies last June. Microsoft General Counsel Brad Smith described its use to the 350 law-enforcement experts attending a company conference Monday.

The device contains 150 commands that can dramatically cut the time it takes to gather digital evidence, which is becoming more important in real-world crime, as well as cybercrime. It can decrypt passwords and analyze a computer's Internet activity, as well as data stored in the computer.

It also eliminates the need to seize a computer itself, which typically involves disconnecting from a network, turning off the power and potentially losing data. Instead, the investigator can scan for evidence on site.

Seattle Times: Microsoft device helps police pluck evidence from cyberscene of crime

Why anyone with more than a passing interest in the security of their information would use Microsoft products in the first place is sort of beyond me.

I wonder how many of these little USB drives have gone missing or been copied since the initiation of the COFEE program... and I wonder what the inevitable follow-on DONUT program is going to do. (Talk about pandering to your audience.)

Amino acid test

In April 1993, a man in a balaclava mask escaped after sexually assaulting a 36-year-old woman in the town of Bridgwater, England. More than 13 years later, forensic detectives used an unusual approach to track the man down: A genetic trace that led first to his sister.

Known as familial searching, the U.K. technique has already helped crack 20 difficult cases and led to the arrest of several long-elusive murderers and rapists.

The innovation is propelled by the growth of Britain's DNA database, which holds the records of 4.2 million people in England and Wales, or nearly 8% of the population there, one of the largest proportions in the world. Anyone arrested -- including for minor offenses -- must provide a DNA sample, which stays in the database permanently, even if the person is acquitted. About a quarter of the profiles are of minors, some as young as 10.

The U.S. is now considering following Britain's lead...

The Gene Police (Wall Street Journal, 23 February 2008)

Ahead of his time

J. Edgar Hoover founded the Federal Bureau of Investigation in its modern form and was, amazingly, Director for almost 50 years, spanning the presidencies of Calvin Coolidge through Richard Nixon.

It has recently emerged that, in 1950, at the outbreak of the Korean War, Hoover advanced a plan to suspend the writ of habeas corpus and consign 12,000 people, the vast majority of whom were putatively disloyal American citzens on whom the FBI had been keeping very close watch, to indefinite terms of imprisonment:

Hoover sent his plan to the White House on July 7, 1950, 12 days after the Korean War began. It envisioned putting suspect Americans in military prisons.

Hoover wanted President Harry S. Truman to proclaim the mass arrests necessary to “protect the country against treason, espionage and sabotage.” The F.B.I would “apprehend all individuals potentially dangerous” to national security, Hoover’s proposal said. The arrests would be carried out under “a master warrant attached to a list of names” provided by the bureau.

The names were part of an index that Hoover had been compiling for years. “The index now contains approximately twelve thousand individuals, of which approximately ninety-seven per cent are citizens of the United States,” he wrote.

“In order to make effective these apprehensions, the proclamation suspends the Writ of Habeas Corpus,” it said.

[...]

The prisoners eventually would have had a right to a hearing under the Hoover plan. The hearing board would have been a panel made up of one judge and two citizens. But the hearings “will not be bound by the rules of evidence,” his letter noted.

The man was a visionary. Of course, he did have the template of the Palmer Raids to work from.

Sadly for our existentially threatened country, Harry Truman was a complete wuss, and he didn't go for this idea, and so, you know, the Communists took over and stuff.

Oh, wait.

Hoover Planned Mass Jailings in 1950 (New York Times, 23 December 2007)

Westboro Baptist Church successfully sued

This may very well not hold up on appeal... but it's settled law that the First Amendment protections on freedom of religion are not unlimited, and this strikes me as a pretty reasonable place to start establishing some new limits:

A grieving father won a nearly $11 million verdict Wednesday against a fundamentalist Kansas church that pickets military funerals in the belief that the war in Iraq is a punishment for the nation's tolerance of homosexuality.

Albert Snyder of York, Pennsylvania., sued the Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Lance Cpl. Matthew Snyder, who was killed in Iraq.

The jury first awarded $2.9 million in compensatory damages. It returned later in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress.

U.S. District Judge Richard Bennett noted the size of the award for compensating damages "far exceeds the net worth of the defendants," according to financial statements filed with the court.

Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as "Thank God for dead soldiers" and "God hates fags."

CNN: Church ordered to pay $10.9 million for funeral protest

American citizens are free to hold noxious religious beliefs and toxic political opinions in this country... but I can't for the life of me understand why you should be free to torment grieving families who are trying to bury their dead with a modicum of dignity, and claim First Amendment protection for that.

Fallows on Mukasey

...The Administration has proven that it cannot be given the benefit of the doubt on questions of civil liberties, expansion of executive powers, or the conversion of its open-ended, ill-defined, decades-long state of "war" into an excuse for permanent, abusive, often secret changes in the balance of rights and powers that is America's greatest constitutional achievement.

On crucial points, Mukasey's second-day testimony amounted to a request that he and the Administration be trusted to do the right thing. Nothing against him personally, but the time for trust has passed. Unless Mukasey explicitly repudiates the most abusive parts of his predecessor's (and his President's) record, the Senate would be negligent and reckless to approve him.

...[A]s is now becoming famous, Mukasey said this, when asked by Sen. Sheldon Whitehouse whether waterboarding was constitutional:

“I don’t know what is involved in the technique,” Mr. Mukasey replied. “If waterboarding is torture, torture is not constitutional.”

Either way you slice it, this answer alone is grounds for rejecting Mukasey. If he really doesn't "know what is involved" in the technique, he is unacceptably lazy or ill-informed. Any citizen can learn about this technique with a few minutes on the computer.* Any nominee for Attorney General in 2007 who has not taken the time to inform himself fits the pattern of ignorant incuriosity we can no longer afford at the highest levels.

So, if Mukasey was telling the truth in this answer, he is too lazy for the job. If he was lying, he's too dishonest.

Mukasey: No (James Fallows, 19 October 2007)

CSI: Mississippi

If your blood pressure is a little -- or a lot -- low, Radley Balko can take care of that for you:

In a remarkable capital murder case earlier this year, the Mississippi Supreme Court, by an 8-to-1 vote, tossed out the expert testimony of Steven Hayne. The defendant was Tyler Edmonds, a 13-year-old boy accused of killing his sister’s husband. Hayne, Mississippi’s quasi-official state medical examiner, had testified that the victim’s bullet wounds supported the prosecution’s theory that Edmonds and his sister had shot the man together, each putting a hand on the weapon and pulling the trigger at the same time.

“I would favor that a second party be involved in that positioning of the weapon,” Hayne told the jury. “It would be consistent with two people involved. I can’t exclude one, but I think that would be less likely.”

Testifying that you can tell from an autopsy how many hands were on the gun that fired a bullet is like saying you can tell the color of a killer’s eyes from a series of stab wounds. It’s absurd. The Mississippi Supreme Court said Hayne’s testimony was “scientifically unfounded” and should not have been admitted. Based on this and other errors, it ordered a new trial for Edmonds.

But it wasn’t the doctor’s dubious claim that made the case unusual. It’s the fact that the court explicitly renounced his testimony. It was the first time that had happened to Hayne in hundreds of cases dating back nearly 20 years.

By any sane standard, the decision was long overdue. Hayne’s career in court is an egregious example of what happens when the criminal justice system fails to adequately oversee expert testimony. He may be unusually careless, but he is not unique—not in Mississippi, and not in the United States.

CSI: Mississippi (Radley Balko, Reason magazine, November 2007)

The bending of definitions and the turning of blind eyes

In every war, information is a weapon. In a “war against terrorism”, where the adversary wears no uniform and hides among the civilian population, information can matter even more. But does that mean that torture can sometimes be justified to extract information?

The answer in international law is categorical: no. As laid down in treaties such as the Geneva Conventions, the UN Convention against Torture and the International Covenant on Civil and Political Rights, the ban on torture or any cruel, inhuman or degrading treatment is absolute, even in times of war. Along with genocide, torture is the only crime that every state must punish, no matter who commits it or where. Defenders of this blanket prohibition offer arguments that range from the moral (torture degrades and corrupts the society that allows it) to the practical (people will say anything under torture so the information they provide is unreliable anyway).

The September 11th attacks have not driven any rich democracy to reverse itself and make torture legal. But they have encouraged the bending of definitions and the turning of blind eyes. There is a greater readiness among governments that would never practise torture themselves to use information which less squeamish states have obtained—through torture.

Terrorism and civil liberty: Is torture ever justified? (The Economist, 20 September 2007)

Strange bedfellows

Here are a couple of sites set up to generate grassroots opposition to the Real ID Act, which essentially requires states to turn their drivers' licenses into de facto national ID cards.

This one is from the ACLU, which sees the national ID card as a gross invasion of privacy that won't do anything significant to deter terrorism:

The Real ID Act of 2005 would turn our state driver’s licenses into a genuine national identity card and impose numerous new burdens on taxpayers, citizens, immigrants, and state governments – while doing nothing to protect against terrorism. As a result, it is stirring intense opposition from many groups across the political spectrum. This Web site provides information about opposing Real ID.

And this one is from Endtime Ministries, which views the national ID card as the Mark of the Beast:

There is a prophecy in the Bible that foretells a time when every person will be required to have a mark or a number, without which he or she will not be able to participate in the economy. The prophecy is 2,000 years old, but it has been impossible for it to come to pass until now. With the invention of the computer and the Internet, this prophecy of buying and selling, using a number, can now be implemented at any time. Has the time for the fulfillment of this prophecy arrived?

And the libertarians shall lay down with the loons.

• RealNightmare.org (ACLU)
• NoNationalID.com (Endtime Ministries)

P.S. Ah, the benefits of a good old-fashioned parochial school education: Here are the hair-raising relevant bits from the Book of Revelation, chapter 13, King James translation.

11 And I beheld another beast coming up out of the earth; and he had two horns like a lamb, and he spake as a dragon.

12 And he exerciseth all the power of the first beast before him, and causeth the earth and them which dwell therein to worship the first beast, whose deadly wound was healed.

13 And he doeth great wonders, so that he maketh fire come down from heaven on the earth in the sight of men,

14 And deceiveth them that dwell on the earth by the means of those miracles which he had power to do in the sight of the beast; saying to them that dwell on the earth, that they should make an image to the beast, which had the wound by a sword, and did live.

15 And he had power to give life unto the image of the beast, that the image of the beast should both speak, and cause that as many as would not worship the image of the beast should be killed.

16 And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads:

17 And that no man might buy or sell, save he that had the mark, or the name of the beast, or the number of his name.

18 Here is wisdom. Let him that hath understanding count the number of the beast: for it is the number of a man; and his number is Six hundred threescore and six.

"And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads..."

I dunno, dude. Even allowing for the archaic English, that sounds more like implantable RFID chips to me.

Stop Illegal Spying

As a constituent who cares deeply about respect for the rule of law, our nation's tradition of checks and balances, and the Fourth Amendment, I urge you to support immediate and thorough investigations into the National Security Agency's (NSA) warrantless spying program as well as other abuses of surveillance powers. Congress must uphold its Constitutional duty as a check on the Executive's power and put an end to such unprecedented violations of Americans' rights.

If anyone involved in the NSA spying program has broken the law, he or she should be held accountable. Hearings should be held to investigate the extent to which the law been broken and how to prevent such illegal activity now and in the future. The inquiry must also uncover the program's operational details, including whom it targets and the information it collects.

Such vigorous oversight is long overdue. It has now been over a year since the press first reported on this clear violation of the Fourth Amendment and the legal safeguards set up by Congress. Yet Congress has so far failed to thoroughly investigate the details of this still-shadowy program.

Meanwhile, more privacy invasions have continued to come to light and must also be the subject of Congressional scrutiny. For instance, the FBI has blatantly misused National Security Letters under PATRIOT Act and violated the law to spy on Americans' telephone, Internet, and other personal records, as documented in a report recently released by the Justice Department's Inspector General.

Congress should also eschew any expansions of surveillance power. It would be highly irresponsible to legislate in the dark, before the past and present abuse of surveillance powers has been thoroughly investigated.

It's time for Congress to do its job and help restore the checks and balances that define our democracy. Please support investigations regarding the secret NSA surveillance program and help stop the illegal spying.

StopIllegalSpying.org

My National Security Letter gag order

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

The inspector general's report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general's report suggests that large telecom companies have been all too willing to share sensitive data with the agency -- in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I've now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point -- a point we passed long ago -- the secrecy itself becomes a threat to our democracy. In the wake of the recent revelations, I believe more strongly than ever that the secrecy surrounding the government's use of the national security letters power is unwarranted and dangerous. I hope that Congress will at last recognize the same thing.

Usually, I quote excerpts.

This time I just cut and pasted the whole damned thing:

My National Security Letter Gag Order (The Washington Post, March 23, 2007)

"Bong hits" make strange bedfellows

The "BongHits4Jesus" case is going to the Supreme Court:

A Supreme Court case about the free-speech rights of high school students, to be argued on Monday, has opened an unexpected fissure between the Bush administration and its usual allies on the religious right.

As a result, an appeal that asks the justices to decide whether school officials can squelch or punish student advocacy of illegal drugs has taken on an added dimension as a window on an active front in the culture wars, one that has escaped the notice of most people outside the fray. And as the stakes have grown higher, a case that once looked like an easy victory for the government side may prove to be a much closer call.

[...]

While it is hardly surprising to find the American Civil Liberties Union and the National Coalition Against Censorship on Mr. Frederick’s side, it is the array of briefs from organizations that litigate and speak on behalf of the religious right that has lifted Morse v. Frederick out of the realm of the ordinary.

The groups include the American Center for Law and Justice, founded by the Rev. Pat Robertson; the Christian Legal Society; the Alliance Defense Fund, an organization based in Arizona that describes its mission as “defending the right to hear and speak the Truth”; the Rutherford Institute, which has participated in many religion cases before the court; and Liberty Legal Institute, a nonprofit law firm “dedicated to the preservation of First Amendment rights and religious freedom.”

You find civil libertarians in the strangest places these days. (I have enormous respect for the Rutherford Institute, by the way, and have linked to them--see "Liberty Links" in the sidebar--for a couple of years now.)

Free Speech Case Divides Bush and Religious Right (New York Times, 19 March 2007)

D.C. Circuit Court of Appeals strikes down gun control law

Can someone get a weather report from Hell? I'm wondering if it has frozen over.

Some shockingly good news from the D.C. Circuit Court of Appeals:

A federal appeals court in Washington today struck down on Second Amendment grounds a gun control law in the District of Columbia that bars residents from keeping handguns in their homes.

The court relied on a constitutional interpretation that has been rejected by nine federal appeals courts around the nation. The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias.

There is abundant evidence that a private, individual right of gun ownership was the precise intent of the Founders, as noted (for example) in Sanford Levinson's Yale Law Journal article, The Embarrassing Second Amendment:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, ²⁸ is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay — The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.

Ahem, yes.