Such honesty has proved contagious. As Brookings Institution scholar Benjamin Wittes chronicles in the current edition of The New Republic, various liberal legal scholars have come to grudgingly accept that the Second Amendment's meaning and intent include the individual right to own a gun. "(T)he amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification," writes no less than the dean of liberal legal scholars, Laurence Tribe. Tribe had to update his textbook on the Constitution to account for the growing consensus that - horror! - Americans do have a constitutional right to own a gun. It's not an absolute right, of course. But no right is.
Now, you might think this is what I have in mind when I say that the Court of Appeals ruling was an epochal victory for conservatives. But it's not.
No, the real victory is that liberals are starting to accept the fact that the constitution has a meaning separate and distinct from what the most pliant liberal judge wants it to mean. Therefore, writes Wittes, "perhaps it's time for gun-control supporters to come to grips with the fact that the (Second Amendment) actually means something ... For which reason, I hereby advance a modest proposal: Let's repeal the damn thing." Wittes isn't alone. A number of left-wing commentators have picked up the idea as well.
Personally, I would oppose repeal, and I have problems with many liberal arguments against the Second Amendment. But that liberals are willing to play by the rules is an enormous, monumental victory that transcends the particulars of the gun-control debate.
According to the so-called "living Constitution" championed by liberals from Woodrow Wilson to Al Gore and Bill Clinton, amendments are a waste of time since enlightened jurists can simply "breathe new life" into the meaning of the Constitution. No more, if Wittes and Co. have their way. Now, we'll have to have an argument.
"It's true that repealing the Second Amendment is politically impossible right now," Wittes concedes. "That doesn't bother me. It should be hard to take away a fundamental right."
Yes, it should. It should also be hard to mint a new one. And, as conservatives have argued for decades, in both cases the ideal method is democratic debate and legislative deliberation, not judicial whim. So buck up, my conservative brethren. It's not all bad news these days.
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