When Liberals Rationalize

By Ken Hanson, Esq.

Professor Laurence Tribe has published an op-ed in the Wall Street Journal that has some folks scratching their heads bloody. In this piece, Tribe interjects his opinion on the D.C. v. Heller case about to be argued in front of the U.S. Supreme Court. Typical of his genus (liberis thinkeumsupremis), Tribe's piece is a splendid example of intellectual obfuscation.

By way of background, Tribe was sought out by both sides in this case, given his stature in the field of Constitutional law. Any brief over his signature is bound to be read closely. Having declined to be involved directly on either side as an author, he is now attempting to preserve his relevance to the debate, and steer the court, through this op-ed.

To Tribe's credit, he is one of the few members of the liberis caste who concedes that the Second Amendment means what it plainly says, and he does not buy into the collectivist hoax that the nation's appellate courts and their complicit main-stream media have tried to foist on the unsuspecting public. Tribe is one of the admitted liberal opinion leaders who concludes that the Second Amendment confirms the individual right to own firearms.

It is true that some liberal scholars like me, having studied the text and history closely, have concluded, against our political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of state militias and national guard units.

Somewhat refreshing, Tribe does not mince words. He states clearly that the intent of the Amendment is to allow individuals to defend themselves from the tyranny of government. In his words, a "constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government..." Uncomfortable, but true.

(Go back 600 years to Machiavelli's Discourses, or even back 2,300 years to the original work by Titus Livy, which is mostly lost to history. Commentators agree that the one common component in the historical examples of thriving societies is either, 1.) The freely armed citizen, or 2.) The completely disarmed and subjugated "citizen.")

Unable to contain is liberis instincts further, Tribe then launches into a diatribe about how the lower court went too far in striking down the D.C. ban.

Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

Say what?

Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing....Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.

Wow. If you will excuse the culturally insensitive pun, Tribe has clearly left the reservation with this reasoning. How dare a court allow someone to "brandish" a firearm of their own "choosing" when deciding how best to repel the jackbooted thugs?

So, on the one hand, Tribe concedes the Second Amendment is an individual right. On the other hand, Tribe somehow rationalizes that a de facto ban on gun ownership in D.C. is not a violation of that right, and California, etc. should be able to do the same. In one breath, Tribe opines that the Second Amendment is needed to safeguard against the heavy hand of government. In the next breath he concludes that people can only equip and defend themselves against the government to the extent and in the manner that government allows the people to do so. Talk about the wolves guarding the sheep.

Further, by couching the government threat addressed by the Second Amendment as the "national government," Tribe is setting up future wiggle room for him to subsequently argue that the Second Amendment applies against the federal government only, and does not restrict state and local gun control. A quick, unscientific poll of New Orleans residents found that, with regard to protection against government tyranny, 100% of them don't give a damn if it is the national government, the state government or the local government placing them under martial law.

Professor Tribe, this is pure, results-driven intellectual prostitution. Conceding the existence of the right then refusing to allow and enforce the effective exercise of the right is an absurdity that cannot withstand any degree of scrutiny.

As our readers are aware, Buckeye Firearms Foundation filed an amicus brief in the Heller case. To be honest, in several sectors we have taken some heat for the contents of our brief. Some gun rights proponents have lambasted us for taking the approach of providing sociological arguments in favor of Heller, rather than filing yet another "what part of 'shall not infringe don't you understand" brief. People in favor of gun rights are usually in favor of judicial restraint and strict construction, and our brief is something of a departure from this party line.

Professor Tribe's op-ed is exactly the sort of tripe that our brief was targeted at. People need to understand, explicitly, the lives people laboring under these misguided laws lead. People also need to understand how corrupt, dysfunctional governments are allowed to run rampant in these environments. Gun bans create a government-sanctioned victim class, sheep penned for the slaughter. Everything that Tribe concedes the Second Amendment is intended to protect against is happening to the citizens in cities with gun bans, whether it is D.C., Chicago or Los Angeles. Any city adopting these types of laws is doomed to repeat the failures of their predecessors.

Tribe's basis for urging judicial restraint is framed as follows:

The court would be foolhardy to accept either side's invitation that it plunge headlong into the culture wars by accepting these extreme ways of framing the issue.

I would respectfully enter a demurrer to Tribe's premise. The court is already in the center of the culture war by virtue of activist courts and opinion leaders like Tribe trying to split the Second Amendment baby. As some unknown commentator noted, the trouble with splitting the baby is that the baby always dies. My concern is not the court plunging into a culture war they are already constitutionally bound to resolve in an intellectually honest fashion. My concern is that the court listens to Tribe and hands gun owners a pyrrhic victory, full of symbolic vindication while simultaneously void of any legal substance.

The only question at that point will be whether the culture war escalates into a shooting war, literally and figuratively.

Ken Hanson is a gun rights attorney in Ohio and is the attorney of record for Buckeye Firearms Foundation, which filed an amicus brief in the Heller case. He is the author of The Ohio Guide to Firearm Laws, is a certified firearms instructor and holds a Type 01 Federal Firearms License.