by Shahid Buttar, a Constitutional Attorney and Organizer

Missing the Point 

Owen Courrèges graciously recaps parts of my reflections on the Virginia Tech massacre and analysis of the Second Amendment, but unfortunately misconstrues others and overlooks the ultimate point.  He starts by making four points opposing my observation that "no right is absolute."  

The first and second both relate to the same straw man.  Courrèges characterizes my argument as suggesting that any government interference with an individual right would be legitimate, while I say no such thing.  He then draws concern – about a standard as lax as “what[ever] the government feels is necessary” – to a non-issue.   

Contrary to his suggestion, a "blanket ban on gun ownership" is the antithesis of a narrowly tailored law, which by definition would have to take a more subtle form.  A narrowly tailored restriction might limit the kinds of guns available or enhance oversight mechanisms, such as registration requirements or waiting lists, to ensure that violent or mentally unstable people don't gain access to deadly weapons.  My reflections on the Virginia Tech shootings do not imply a "blanket ban on gun ownership," nor would such a law be narrowly tailored.   

Courrèges also confuses the implications of the Korematsu decision, while correctly noting that it is "widely regarded as incorrectly decided."  Less than a century before Korematsu was decided, our nation fought a Civil War over, among others, a principle enshrined in the 14^th Amendment: that no citizen shall be denied equal protection under the law on account of race.  Yet despite undertaking its most exacting analysis, under the "strict scrutiny" standard, the Supreme Court allowed 100,000 Japanese-Americans to be incarcerated – only to face universal derision ever since.  The decision demonstrates the outer edge of judicial deference to government restrictions on rights.  It is all-too-concrete proof that "no right is absolute." 

As I write in my initial reflections, "[e]ven the most precious liberties are subject to judicial scrutiny, and the authorization of restrictions where justified."  Korematsu shows what can happen when the judiciary takes a permissive view towards government power, sometimes authorizing restrictions on liberties even when not justified.  Korematsu also indicates the meaninglessness of constitutional protections, in the sense that they can be summarily rejected by a court disinclined to protect them.  

Finally, Courrèges contrives an artificial and arbitrary time slice to suggest that gun control hasn't worked in Britain because rates of gun violence are increasing.  But the same official British source that he cites also specifies that in 2005, the country experienced a "6% reduction in serious injuries from firearms offences" and a "16% reduction in the use of handguns." 

Moreover, even if gun violence in Britain has risen in recent years, it remains well below U.S. levels.  My point is not that gun violence in Britain is decreasing over time – which carries no implications for my analysis – but rather than it has historically been and remains low when compared to the U.S. example.  According to the British Home Office, "the overall level of gun crime in the UK is very low – less than 0.5% of all crime recorded by the police." 

Separately, Courrèges mistakenly suggests that my initial article "spun the Second Amendment to where it doesn’t protect what it purports to protect, namely the right to keep and bear arms, and instead protects the rights of extremist protest groups against law enforcement."  He summarily concludes that "the Second Amendment deals with the possibility of armed insurrection, not protests," because "[t]he rights of protestors are effecitvely [sic] dealt with elsewhere."   

But Courrèges would have to admit that "armed insurrection" is simply not a viable possibility today, given advances in technology and weaponry available only to the government.  As a result, the private right guaranteed by the Second Amendment – the right to keep and bear arms – no longer serves its public purpose.  In the face of so inexorable a change, should we simply disregard the Amendment's purpose and let it fade from constitutional memory? If so, from whence stems the private right to which Courrèges appears so committed?   

The answer is simple: the Constitution is more than a mere statute.  It was meant to endure across time, to embody a set of principles to guide the Republic across history.  From that perspective, we are bound to consider what it would take for the Second Amendment to apply meaningfully in contemporary society, given its aims of enshrining an independent popular check on state action.   

If the Amendment at one point protected a right to violent anti-government resistance, as it quite clearly did from a textual perspective, it must also encompass the lesser-included right to non-violent resistance.  And while weapons technology has rendered a violent uprising untenable today, non-violent resistance is no less efficacious now than it has been in the past.   

From this reasoning, sit-ins and other assertive reclamations of public space warrant constitutional protection beyond that afforded to mere speech in dissent.  While the assembly and speech rights of social and political dissidents are indeed addressed elsewhere, only the Second Amendment guarantees a right for such figures to mount resistance to the state.