I’m old enough to have concluded, not so long ago, that I probably would not live to see Americans elect a truy reflexive – yet thoughtful – civil libertarian as President. I had hoped that Bill Clinton would be such a President, at least until he actually moved into the White House. Just his act of signing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) (summary here) was enough to sober me up. Anyone who thinks that George W. Bush was the first president in modern times to shred habeas corpus has a very short memory and should read AEDPA and some of the related commentary.

    But there’s reason to hope that the next President might do a better job of protecting Americans’ civil liberties than Clinton – or his predecessors or successor – did. Jeffrey Rosen, the talented legal columnist and analyst for The New Republic, just posted an essay online – subscription required; also to appear in a forthcoming issue – in which he posits that Barack Obama, if elected to the presidency, could readily be “the first civil libertarian president.” I suppose it depends on how far back one goes to determine who’s “first” (Jefferson was very good in theory, but only pretty good in practice). If we examine not only Obama’s positions (it’s awfully easy to talk a good game, of course), but also his actions over the years, we come away with a sense that mirrors Rosen’s conclusions.

    There are two policy areas which to me are really the tip-off that Obama is the real thing.

    First, when he was a State Senator in Illinois, he championed and got enacted a bill that required that all interrogations and confessions be videotaped in capital cases. This is not an easy sell for either the public or for police and prosecutors. But experience tells us that false confessions, as a result of unfair or coercive interrogations, are a major cause of false convictions, including and especially in murder cases. As a criminal defense lawyer, I can attest (from personal experience) to the extent to which things can go wrong when police are allowed to claim that a defendant confessed in an off-the-record discussion or interrogation session. Because it declaws coercive interviewing and deters police from misconduct during interrogations, required taping of confessions is an essential arrow in the quiver of anyone truly supportive of liberty. Obama made it a centerpiece of his legislative program in Illinois. It takes some guts to be publicly in favor of the rights and liberties of criminal defendants. Bravo!

    But there’s another, equally controversial issue where Obama emerges as a consistent but sane civil libertarian – gun control, one of the third rails of American politics. He stands in opposition to those liberals who believe that the Second Amendment does not assure an individual’s right to bear arms. (Those who subscribe to this theory hold, instead, that the Second Amendment merely guarantees to states the right to maintain arms for the purposes of militias.) Those of us who believe in liberty as the default position, and read the text of the Amendment through that lens, naturally come out in favor of a strong individual right to gun ownership. But Obama also stands in opposition to those conservatives who believe that the Second Amendment prohibits the state from enacting even reasonable restrictions (“gun control”) on this constitutional right. Obama suggests that the gun rights guaranteed by the amendment are “subject to common-sense regulation just like most of our rights are subject to common-sense regulation.” This has caused David Weigel to suggest on Reason Magazine's Hit & Run blog that Obama “is a civil libertarian, except when he is not.” But Weigel is wrong on this: Even free speech rights, protected by the First Amendment, are and always have been subject to reasonable time, place and manner restrictions. I’m as close as one can come to being a free speech absolutist, and yet even I believe that it is properly unlawful to phone someone at three o’clock in the morning, day after day, to either damn or praise him or her. (Although I prickle at the way the term ‘harassment’ is thrown around, it’s true that there is indeed a form of speech that is harassment. This would be a natural example.) So extending Weigel’s logic from the Second to the First Amendment, anyone who accepts even a minor deviation from the absolutist free speech stance “is not … a civil libertarian.” It’s unreasonable to think that only absolutists are civil libertarians.

    Both of those policy areas make me think that we might well have in Obama – a former lecturer in constitutional law at the University of Chicago – a sane civil libertarian who will naturally annoy those on the far left and on the far right. In itself, it’s a good sign that he even bothers to think about these things.

By Wendy Kaminer

“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”1939 ruling

These are among the most disputed words in the U.S. Constitution. People who support gun control, or prohibition, generally argue that the Second Amendment conditions the right to bear arms on service in a state militia, merely establishing a “collective” right.  They focus on the prefatory phrase:  “A well-regulated militia being necessary to the preservation of a free state…” Opponents of gun control, or prohibition, argue that the Second Amendment, like other provisions in the Bill of Rights, guarantees an individual right – the right to bear arms independent of service in a militia.  They argue that the prefatory reference to state militias offers a reason for securing the right to bear arms, not a condition for exercising it.   (I’ve addressed this debate at some length here and here.

The Supreme Court has never clearly ruled on this collective vs. individual rights debate, but it may soon get the chance.  (The Court’s previous ruling, on the Second Amendment, U.S. v Miller, is about as open to interpretation as the Amendment itself.)  On March 9^th the U.S. Court of Appeals for the District of Columbia issued a ruling long sought by libertarians and other advocates of individual gun rights, and long feared by advocates of stringent gun control.  With one dissent, a three judge panel ruled that the Second Amendment does indeed confer an individual right to keep and bear arms, striking down the District of Columbia’s virtual ban on gun ownership, which extended even to guns kept in the home for self-defense.

 Writing for the majority, Judge Laurence Silberman reviewed the scholarly debate about the Founder’s intent and the meaning of the Second Amendment today. As Judge Silberman observed, if the right to bear arms was intentionally conditioned on militia service, if its sole purpose was insuring the survival of state militias as checks on federal power, then it is essentially “dead letter” today -- as opponents of gun rights like to believe. 

Indeed, for many years the Second Amendment was an effective anachronism; it may have been the favorite constitutional provision of right-leaning scholars and NRA members, but it was generally slighted by legal scholars and the courts, as well as most liberal civil libertarians.  The ACLU has long treated the Second Amendment as an irrelevancy, siding with proponents of strict gun control who insist that the Constitution establishes only a collective right to bear arms in a state militia.  (ACLU policy provides, in part, that “the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated militia.  Except for lawful police and military purposes, the weapons by individuals are not constitutionally protected.”)

This “collective rights” position lost some legitimacy in recent years, however, even among liberals.  In 1989, University of Texas law professor Sanford Levinson revitalized the gun rights debate with an influential law review article “The Embarrassing Second Amendment.”  Levinson, a liberal, “card-carrying” ACLU member, challenged the orthodox liberal view of the Second Amendment as a guarantee of effectively defunct, collective rights.  This was not “a wholly implausible reading,” Levinson observed; but “one might ask why the Framers did not simply say something like ‘Congress shall have no power to prohibit state-organized and directed militias.’” 

The most compelling argument in favor of individual gun rights is contextual:  The Bill of Rights protects individuals from abuses of government power, framing some freedoms as fundamental and inviolate: the right to assemble, the right to speak, the right to keep law enforcement from invading your home without a warrant, and fair trials rights, (among others) are all conferred upon individuals.  Or so the ACLU would argue – except when the right to own a gun is at issue.  Years ago I was unable to persuade the ACLU of Massachusetts merely to establish a committee to consider the nature of Second Amendment rights.

The opposition of liberal civil libertarians to individual gun rights may reflect some ideological inconsistency, but it’s not hard to understand culturally or politically.  Liberals tend to treat gun rights the way social issue conservatives treat the right to read pornography.   They tend not to empathize with the visceral sense of gun owners that the right to bear arms is an essential component of individual autonomy.  Instead, they regard gun rights as insuperable obstacles to gun control.

That is an arguably faulty assumption, reflecting the stereotypical view of gun owners as phallo-centric maniacs irrevocably opposed to gun regulations.  Some advocates of gun rights argue that acknowledging a basic, individual right to bear arms would actually ease opposition to measured gun control – which many gun owners now regard (not unreasonably) as incremental steps toward prohibition.   Given the sorry history of efforts to prohibit conduct in which millions of Americans indulge, advocates of regulating guns might consider the recognition of Second Amendment rights by the Court of Appeals less a setback than an opportunity.