Why am I writing about liberty, a word which is etched into our civic consciousness at a very early age? In the diary-fest that followed Aurora, someone left a comment that ended thus:
I hope a few on the other side will do away with their own self-righteousness long enough to see how small and petty it looks when you use an outrageous attack like this to push an unpopular, liberty-squashing agenda.Liberty-squashing, about banning a certain group of guns. It made me think that something has happened -- it might be the Tea Party but I don't want to blame them -- to what we think of as liberty, and that it has to do with privilege.
My immediate response was not printable, but it occurred to me that this might be an occasion to point out the ways that in the large community that is the membership of Daily Kos, some of us are not as equal as the rest of you in certain crucial ways that make using "liberty-squashing" in the context of the Second Amendment look ridiculous.
Discussion below the great orange gunrest.
Liberty is one of the key words in American political discourse. It's guaranteed to us in the Preamble of the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.It's translated into the conclusion of the original (1892) Pledge of Allegiance:
I pledge allegiance to my flag and the republic for which it stands, one nation indivisible, with liberty and justice for all.We don't think about it a lot because we're SURE we know what it means, and I'd guess most of us think that "freedom" and "liberty" are interchangeable.
So I went to the Oxford English Dictionary. There are 15 HEADINGS for definitions of "freedom." The ones that fit our understanding of it in terms of citizenship are
3. The state or fact of not being subject to despotic or autocratic control, or to a foreign power; civil liberty; independence.and
1724 Swift Let. to Molesworth 9 Freedom consists in a People being Governed by Laws made with their own Consent.
4. a. The state of being able to act without hindrance or restraint; liberty of action. and c. As a count noun: a particular type of freedom (sense 4a), esp. when regarded as a right; a civil liberty.4c leads us to "liberty." 5 headings here, and the one that seems to fit what we mean is
1999 Herald (Glasgow) 6 Apr. 14/5 Our forebears struggled for centuries to achieve the freedoms which we enjoy today, including the right of opposition parties and the press to question Government policy.
2. c. Each of those social and political freedoms which are considered to be the entitlement of all members of a community; a civil liberty.OED also defines civil liberty:
2. a. Freedom of the individual within society; spec. the liberty to which all members of a community or society are entitled within the bounds of laws considered necessary for the good of the community as a whole.So "Liberty" is the ability to freely exercise all the rights we have as citizens. These include the rights given to us by the Constitution (as you remember, Amendment 9 says that we're also entitled to rights that are not enumerated in the Constitution). Certainly, these include rights conferred by the First, the Second and the Fourteenth Amendment.
1801 E. Pendleton Let. 5 Oct. in Lett. & Papers (1967) II. 696 The chief good derivable from government, is civil liberty.
Then I did a google search of liberty and gun rights. Most of the documents I found that referred to an erosion of gun rights were from state chapters of the National Rifle Association, and they contrasted the precarious nature of gun rights guaranteed by the Second Amendment (Mark Sumner makes this emphasis VERY clear in his front page diary today) with the absolute sacrosanct nature of the rights guaranteed by the First Amendment. The problem is that, within the First Amendment, several rights were understood to be limited when the amendments were written and others have been limited since then. For clarity, here's the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."No law respecting an establishment of religion" appears to be the most sacrosanct. The Supreme Court has itself violated the free exercise of religion when it told Conservative and Orthodox Jewish chaplains that they could not wear the head covering prescribed by Exodus and Leviticus indoors unless they were performing a religious service (Goldman v Weinberger, 1986). The freedom of speech and that of the press are limited by the laws regarding libel and slander. As for peaceable assembly, that right has been eroded most of all by requiring parade permits and in the constant negotiation over public and private property that we saw the Occupy movement dealing with on a daily basis last fall and winter. So I have to wonder why the Second Amendment can't, or shouldn't, be restricted in similar ways.
Let's also remember that when the Second Amendment was passed, a majority of American citizens couldn't even vote, and millions of Americans were owned by thousands of other Americans. The clearest expression of the individual right to own guns before 2008 is, ironically, contained in Dred Scott v Sandford (1856) as an incidental comment in the decision that said black people could never be citizens. In 2008, Heller v District of Columbia found an individual right (it doesn't matter that Scalia wrote the majority opinion, it's still the law) to keep and bear arms, and in 2010, McDonald v. Chicago extended the right to the states (Alito wrote this one). The decisions didn't discuss whether there were any guns that should be limited the way cop-killer bullets are. But there's one other constitutional provision we have to look at: the equal protection clause of the Fourteenth Amendment
Amendment XIV; Section 1..
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
The theory behind the Equal Protection clause is what got all those subaltern people -- black men (15th Amendment), women of all races (19th Amendment) -- the ability to vote, and it's the section of the Constitution that protects the LGBT community in securing our civil rights. As the ACLU says:
The ACLU works to ensure that LGBT people have equal opportunity to participate fully in civil society. No LGBT person should experience discrimination in employment, housing, or in businesses and public places, or the suppression of their free expression or privacy rights. The ACLU seeks new laws against discrimination in states and at the federal level, and resists all attempts to weaken the impact of existing nondiscrimination laws. With the repeal of “Don’t Ask, Don’t Tell,” our current federal priority is passage of the Employment Non-Discrimination Act.But, of course, it's not that easy. When the American Psychiatric Association decided in 1973 that gay people did NOT suffer from a mental illness, the only state that had decriminalized us was Illinois. We were not thoroughly decriminalized until Lawrence v Texas in 2003, and, even now, we don't have the full panoply of civil rights all of you have. I can be fired simply if someone THINKS I'm gay in 30 states. I have to limit my job search to the 11 states in which my marriage will be recognized. I'd be very happy to have the liberties you have. And I know all about what it's like to have rights taken away from me. The Defense of Marriage Act was a preemptive taking away of rights, and Proposition 8 came close to being the same thing in California (it dcertainly was for the same-sex couples who want to get married but didn't manage to do so in the five-month window). LGBT people in Maine had marriage taken away from them by referendum too. Nobody attacks me for pointing that out, either.
"Liberty-squashing." Because you can't own a particular type of gun. Count your blessings if that's the only area in which you feel your rights are curtailed.
4:50 PM PT: So let's see. RKBA people don't show up unless it's something contentious?