Volokh On The Right To Bear Arms

While I think even the "right" to bear arms may be regulated vigorously (even speech is subject to heavy regulation under the time-place-manner restrictions long recognized by the Supreme Court), I've never had the problem with guns that many of my progressive brethren do. Aside from the fact that I've found the historical arguments on both sides about equally persuasive, I also tend toward greater liberty in other areas and see no cause to position myself differently here.

The way to circumscribe any freedom involving lethal risk (like, e.g., driving) is not to bar it entirely, but to regulate it substantially and consistently, and punish missteps mercilessly. You want to play with guns? Fine. But shoot a burglar in your home where there was absolutely nothing warranting fear for your physical safety (say, for example, shooting a burglar whose back is turned and whose hand is on the knob of the back door from thirty feet away) and you've committed murder (again, all of this is in my little idyll, and bears no resemblance to the laws as they currently are, and I know the difference).

Background checks and detailed records including ballistic "fingerprints"? Absolutely. Do you absolutely positively have to kill your husband's mistress tonight? Suck it up.

Ultimately, then, I find myself leaning marginally toward an "individual right" (versus a collective or "hybrid" right) interpretive model of the Second Amendment, but somewhat indifferent to the debate. Notwithstanding my vegetarianism, I'm fine with hunting (although I tend to consider anyone who eats anything she lacks the stomach to slaughter with her bare hands in some sense craven). On the other hand, I have no illusions about there being any real benefits to society inherent to allowing widespread gun ownership. It's not like I imagine the nation succumbing to crime where guns are more heavily regulated. I believe the studies that show that guns beget guns. Violence begets violence, and 99 times out of a hundred the dude really only wants the cash in your wallet -- just give it to him and we all live to fight another day, easy come easy go.

Finally, one of the most common arguments in favor of an individual right concerns the right to preserve lethal force in case of a tyrannical usurpation of power by a runaway federal government unaccountable by any legalistic means, and responsive only to force. Funny -- in this sense, I think the Bush administration has provided the strongest argument in favor of liberalizing the right to possess arms. I can think of no more obtrusive and cavalier administration, no administration more diffident toward and disrespectful of the principles of this nation's founding. So maybe this was part of the plan. Vast NRA conspiracy, anyone?

Anyway, all of this in the way of preamble -- actually, pre-Ramble is more apt -- to me linking a post that pushed me ever so slightly closer to an individual rights intepretive model, a thoughtful, methodical discussion by Eugene Volokh. I don't know that I buy the whole thing, but it's an excellent read in any event.

(For those who have been in the recent discussion here concerning the principle of "incorporation" in constitutional law, there are also some excellent incidental observations on that topic as well.)