OSD 215: Gun rights are one of the only domains where principles are popular
And that’s pretty cool.
Rights are defined in calm times and lost in emergencies. That might sound depressing, but it’s really the only way things could be — individual rights are by definition an anti-majoritarian concept, so the only time they come in handy is when a majority doesn’t want you to have them. A popular right needs no protection.
If, on the other hand, an (alleged) emergency has convinced a majority that your rights are dangerous, that’s precisely when your rights are useful. How useful will depend on circumstances.
At times, people’s rights haven’t been useful enough to allow them to grow food on their own property, or live outside of a prison while being of Japanese descent, or sue (via their estate) after being shot dead by apparent carjackers who turned out to be police officers incompetently investigating a report of a man sleeping in his car.
At other times, rights have withstood majority attacks pretty handily. Until recently (perhaps), the ACLU built its reputation on winning such cases.
So, what determines how any particular case will shake out?
One bulwark is procedural: it’s hard to pass a new law. There are lots of executive ways to hollow out a right, but if a new law is required for the task, the right is often protected by how easy it is to derail legislation. Antonin Scalia put it like this at a 2011 Senate committee hearing:
The real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary. But there’s a lot more.
There are very few countries in the world, for example, that have a bicameral legislature…. Very few countries have two separate bodies in the legislature, equally powerful. That’s a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion.
Very few countries in the world have a separately elected chief executive. Sometimes I go to Europe to talk about separation of powers, and when I get there, I find that all I’m talking about is independence of the judiciary. Because the Europeans don’t even try to divide the two political powers, the two political branches, the legislature and the chief executive. In all of the parliamentary countries, the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister, as there is sometimes between you and the president. When there’s a disagreement, they just kick him out. They have a no-confidence vote, a new election, and they get a prime minister who agrees with the legislature.
The Europeans look at [our] system and they say, “Well, it passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. It passes both and then this president who has a veto power vetoes it.” They look at this and they say, “It is gridlock.”
And I hear Americans saying this nowadays. There’s a lot of it going around, they talk about “a dysfunctional government” because there’s disagreement. And the framers would have said, “Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power, because the main ill that beset us, as Hamilton talked about in The Federalist when he talked about a separate senate, he said, ‘Yes, it seems inconvenient. But inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.’”
This is 1787, he didn’t know what an excess of legislation was. So unless Americans can appreciate that and learn to love the separation of powers — which means learning to love the gridlock which the framers believed would be the main protection of minorities. The main protection.
So that’s the procedural protection: even if there’s a consensus to restrict a right, the motley crew executing that restriction might trip over its own feet.
The other protection is to talk the motley crew down. And that’s where gun rights are pretty unique.
Consider the right to be free from unreasonable searches, at issue in the war on drugs’ effect on the warrant requirement. Or consider speech rights, at issue in the current attempt to criminalize … checks notes … the possession of Tiktok with intent to distribute.
There are popular arguments in those domains. There are principled arguments. But the popular ones aren’t the principled ones.
Note this isn’t about people’s private beliefs, or about what’s right or wrong. We’re focusing on the popularity contest here, a purely descriptive question: what are the arguments that politicians reach for when they’re on TV and trying to be effective?
When a drug warrant leads to needless deaths and draconian prison sentences, there are some popular arguments against that, but “Drug defendants have natural rights which are being violated here” is not one of them. (Nor, for that matter, is it a popular argument against the underlying drug laws themselves.) In the case of a potential Tiktok ban, even politicians who are opposed to it mostly frame their arguments in terms of it not being the correct social media legislation, not in terms of the speech rights at issue.
This is not to say that, as a tactical matter, they should. Politicians try to do what is effective, and people (including on the issues above) don’t always agree that protecting the implicated rights is the most important goal. The point is observational. We’re noting domains where the principled position is or is not the popular one.
That’s where gun rights stand out. (Remember gun rights? It’s a newsletter about gun rights.) Easily the most emotionally debated individual right in the US, so you’d think it would be one where the popular position hedges about tradeoffs, pros and cons, etc. But counterintuitively, the mainstream case for gun rights is that you have a natural right to protect your life with weapons, whether from a criminal or from the government. That’s both the underlying principle and the rah-rah applause line for politicians that favor gun rights. See this example from 2020:
Not exactly a paragon of reasoned debate, but that’s kind of the point — the mainstream political position (for supporters) is to hold up the totem and say Special Words. In the free speech domain, this would be like a politician opposing software bans by wearing one of the RSA encryption t-shirts from the ‘90s crypto wars. Interesting? Yeah. Appealing to a niche? Sure. But effective on the masses? No. Except in gun rights, it is effective.
It’s tempting to say that gun rights is one of the last domains where the principled argument is the popular one. But that gives the past too much credit — principled arguments for rights have almost never been popular. See Schenck v. United States, a 1919 case where the Supreme Court upheld a man’s conviction for distribution flyers urging resistance to the World War I draft. Where rights have thrived, it has only been because of (a) what a chore it is to pass a new law, and (b) the occasional favorable court ruling.
Today, guns are unique in this respect. But that’s not a permanent condition. In the 1989-1994 period, when every current state-level assault weapons ban had its initial version made into law and the federal government passed its own AWB, how effective were principled arguments for gun rights?
That goes back to culture, as these things tend to do. Principles-based arguments are sticky once someone has accepted them, but getting that acceptance is not easy. People can’t be tricked or browbeaten into it. They have to want to believe the principle. That’s a discovery process that they have to drive. What we can do to help is to keep building the sort of culture that the general public feels is worth defending on principle.
This week’s links
H/t to @anatana in our Discord.
Community Discord server
For those that enjoy talking about gun stuff and want a welcoming place to do so, join our Discord server. The OSD team and lots of our readers are there. Good vibes only.
Check out OSD gear you’ll actually want to wear around town: top-quality hats, t-shirts, and patches.
If you’re a new gun owner, thinking about becoming one, or know someone who is, come to OSD office hours. It’s a free 30-minute video call with an OSD team member to ask any and all your questions.
Thanks for reading Open Source Defense. Subscribe to get a new post every Monday.