THE BLOG
04/18/2007 06:06 pm ET | Updated May 25, 2011

The Emperor Has No Guns

The boilerplate response to the Virginia shootings from pro-gun Republicans is, sorry about the loss but we all still have to recognize the Second Amendment right to own guns.

What right?

The only authoritative voice on this is the United States Supreme Court which, in United States v Miller in 1939, ruled that Congress can't constitutionally limit a state's right--not a person's right--to bear arms. Yes, the Second Amendment says that "the right of the people to keep and bear Arms, shall not be infringed," but that conclusion is explicitly limited to "a well regulated militia, necessary to the security of a free State."

Since McCain, Giuliani, Romney et al. have falsely and knowingly said thousands of times that an individual has such a "right," I'm reminded of FDR's sage observation that "repetition does not turn a lie into a truth."

So conservatives have been enjoying a collective memory lapse for nearly seven decades. Then last month, the U.S. Court of Appeals for D.C. ignored the 1939 precedent and overturned the District's gun control laws by suddenly stating, based on a tortured reading of the obvious language, that the Second Amendment actually now "protects an individual right to keep and bear arms." Turns out that the 2-1 majority were Reagan and Bush 43 jurists and was written by Judge Laurence Silberman. This is the man who believed Anita Hill was just a lesbian "acting out" and who disowned his close friend David Brock when Brock started criticizing the right-wing scandal machinery instead of feeding it, as Brock describes in Blinded by the Right.

This ruling by an openly partisan appointee seems exactly what conservatives are complaining about when they attack "activist judges" who try to create law rather than comply with the Founder's "original intent." (Or maybe "activist" is just a gross misspelling of "progressive.") What if a new Black Nationalist movement began calling for a re-segregation of American children? They would be free to advocate that under the First Amendment but, after Brown v. Board, they couldn't claim a constitutional basis for segregating schools all over again.

"Deny, deny, deny" is a common tactic of Republicans who resent "reality-based" Democrats. What to do? Here's a do-able suggestion. Whoever moderates the May 3rd MSNBC debate among the Republican presidential candidates should ask, say, Rudy Giuliani, this question: "Mayor Giuliani, after the Virginia Tech shooting, you said, 'Obviously, this tragedy does not alter the Second Amendment. People have the right to keep and bear arms and the Constitution says this right will not be infringed.' Now, since you're a lawyer, you must be aware that the U.S. Supreme Court since 1939 has ruled that only state militias, not individuals, have such a right. So why have you intentionally misstated the law? And if the Court said this 68 years ago, doesn't it qualify as 'settled precedent'? Aren't you and all your rivals undermining constitutional law to politically appease the NRA?"