Update III: On Libertarians Who Dismiss The NRA (& 'Heller')

Business,Constitution,Individual Rights,Left-Liberalism,libertarianism,Multiculturalism,Natural Law

Myron Pauli, a valued reader whose letters are always stimulating, has given in to the sin of abstraction so many libertarians are guilty of. (See the Comments Section of the previous
post.) The root of this error comes from being high on your own ideological purity. So high you walk around with a hangover that clouds clear thinking rooted in reality.

Such individuals have discovered libertarian theory (often from dubious sources), and have set about enforcing it with the zeal of soviet apparatchiks, instead of working with reality. Which is what the very flawed, non-ideological NRA does.

For example, the fact that the NRA has acquiesced to—or rather works around—licensing, causes libertarian purists to dismiss the NRA. This is silly, if not a non sequitur, given the enormous amount of good work the NRA does. And given the fact that libertarians have achieved precious little in this respect. Without the NRA and its formidable clout, there would be no Second Amendment rights in this country. The fact that they are hated by the Left is a notch on their Second Amendment scorecard. (But, as I said to Sean the other day, libertarians don’t share my visceral hatred of the left. Passionless people, for the most)

Myron’s particular argument goes as follows: Because the NRA is “suing private company Walt Disney for the ‘right’ to take their guns on Disney property,” they are useless, not to be supported, and, for good measure, let us call them props of the Republican Party who only pretend to recognize gun rights. More non sequiturs. (No evidence is offered for the accusation that the NRA doesn’t really recognize Second Amendment rights.)

The NRA’s ideas of private property are not my own. But, equally, very many libertarians reject my hard-core propertarian position. For example, lots of libertarians think the libertarian law should not countenance the right of a property owner to eliminate a home invader out of hand. (How many libertarians think Joe Horn is a hero?)

Liberty lovers, instead of being high on their own purity, should take a deep breath and work with reality. This does not mean compromising principles. With respect to the NRA, this implies recognizing and articulating its theoretical flaws but reconciling its realistic gains for liberty.

The NRA’s lack of libertarian purity on private property and their alliance with the GOP notwithstanding, they are a formidable force when it comes to their rather narrow mandate: Second Amendment rights.

Update I (July 13): Let’s see, in an imperfect, ideologically impure world, where corporations are second only to the state in their demands for compliance with diversity doxology, the cult of multiculti, and all manner of suppression–who do I root for; Walt Disney or the little guy with the gun?

It’s much like asking me who I support in the case of another of America’s leftist corporations, Pizza Hut, which sacked James William Spiers for defending himself during a delivery that was really an ambush. Writes blogger Big Dog:

“The details are pretty straight forward. A woman, an accomplice of a criminal, placed a [sic] order for a pizza. The delivery man, James William Spiers, attempted to deliver the pizza when he was confronted by a man who put a gun to his head. Spiers, who has a permit to carry a handgun, grabbed the assailant’s gun and pulled his own weapon. The attacker was shot three times.”

“When police arrived at the scene Spiers placed his hands in the air and dropped to his knees and told the police that he had both weapons in his pockets. So far no charges have been filed but Pizza Hut has suspended Spiers. The company has a policy against carrying a weapon, even for those who have a permit to carry one…”

Pizza Hut prefers for its innocent employees to die rather than defend themselves on the job. This is not the first time the company has followed through on this preference. Here’s a similar story.

Most Americans, who spend their days on the job, cannot carry to work. That rules out self-defense during a good part of the day. Even if workers leave the thing in the car—ill advised, of course—a colleague who discovers their “deviancy” might just tattle, and they risk being retrenched.

Corporations are not that different to government when it comes to rights. Yes, strictly speaking, in libertarian law, the former have a right to write the suspension of rights into their contracts, whereas the latter doesn’t. However, it must be obvious with who I sympathize given what I know of America’s corporate culture—extreme leftism, commitment to making the workforce as multicultural as possible (in the face of the misery and inefficiencies it breeds), a concomitant devotion to forced integration (or else); gay-centric propaganda and circulars routinely foisted on Christians, and a pervasive hostility to Christianity (while prayer rooms for Muslim workers are erected everywhere).

Update II: To those who conveniently “forget” my immutable position on property rights, sympathizing with the Davids in this story doesn’t imply, not even remotely, a support for litigation against the Goliaths. But then those who read this site know I’m a strict propertarian.

Update III (July 14): one of the more vigorous libertarian battles being waged in this country with a good degree of success is that over the Second Amendment. This is one natural right that Americans who want it upheld understand perfectly well. Yet on my blog, there has been a great deal of obfuscation and negation of the gains made to date. Instead of the loopy libertarians who’ve been referenced on BAB (the same loopy sorts dissed Heller Vs. The District of Columbia), let’s listen to some “heavy hitting” clear thinkers.

Randy Barnett is one of the sharpest, most original legal minds in the libertarian community (which is why I was overjoyed when one of my formulations jibed with his, unbeknown to both of us). Dave Kopel is formidable on the Second Amendment. He lives and breathes this jurisprudence and assisted in its litigation. (Imagine; someone who’s been in the thick of the fight, instead of standing on the sidelines dissing everyone.) Here they are on Reason Magazine Online:

RANDY BARNETT: “Justice Scalia’s historic opinion will be studied for years to come, not only for its conclusion but for its method. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Its analysis of the “original public meaning” of the Second Amendment stands in sharp contrast with Justice Stevens’ inquiry into “original intent” or purpose and with Justice Breyer’s willingness to balance an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. The differing methods of interpretation employed by the majority and the dissent also demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same. Now if we can only get a majority of the Supreme Court to reconsider its previous decisions—or “precedents”—that are inconsistent with the original public meaning of the text.”

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center and author of Restoring the Lost Constitution: The Presumption of Liberty.

DAVE KOPEL: “Heller is a tremendous victory for human rights and for libertarian ideals. Today’s majority opinion provides everything which the lawyers closely involved in the case, myself included, had hoped for. Of course I would have preferred a decision which went much further in declaring various types of gun control to be unconstitutional. But Rome was not built in a day, and neither is constitutional doctrine.

For most of our nation’s history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.

Likewise, the Equal Protection clause of the Fourteenth Amendment was, for all practical purposes, judicially nullified from its enactment until the 1930s. When the Court in that decade started taking Equal Protection seriously, the Court began with the easiest cases—such as Missouri’s banning blacks from attending the University of Missouri Law School, while not even having a “separate but equal” law school for them. It was three decades later when, having constructed a solid foundation of Equal Protection cases, the Court took on the most incendiary racial issue of all, and struck down the many state laws which banned inter-racial marriage.

So too with the Second Amendment. From the Early Republic until the present, the Court has issued many opinions which recognize the Second Amendment as an individual right. Yet most of these opinions were in dicta. After the 1939 case of United States v. Miller, the Court stood idle while lower federal courts did the dirty work of nullifying the Second Amendment, by over-reading Miller to claim that only National Guardsmen are protected by the Amendment.

Today, that ugly chapter in the Court’s history is finished. Heller is the first step on what will be long journey. Today, the Court struck down the most freakish and extreme gun control law in the nation; only in D.C. was home self-defense with rifles and shotguns outlawed. Heller can be the beginning of a virtuous circle in which the political branches will strengthen Second Amendment rights (as in the 40 states which now allow all law-abiding, competent adults to obtain concealed handgun carry permits), and the courts will be increasingly willing to declare unconstitutional the ever-rarer laws which seriously infringe the right to keep and bear arms.
As the political center of gravity moves step by step in a pro-rights direction, gun control laws which today might seem (to most judges) to be constitutional will be viewed with increasing skepticism. The progress that the pro-Second Amendment movement has made in the last 15 years has been outstanding. As long as gun owners and other pro-Second Amendment citizens stay politically active, the next 15, 30, and 45 years can produce much more progress, and the role of the judiciary in protecting Second Amendment rights will continue to grow.”

Dave Kopel is Research Director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Educators and Trainers Association was cited four times in the Court’s opinions.

11 thoughts on “Update III: On Libertarians Who Dismiss The NRA (& 'Heller')

  1. EN

    I’m a proud member of the NRA and can’t think of one single case where there intention wasn’t to defend the second amendment, even when it butts up against other “rights”. The Libertarian Party, of which I’m also a proud member has accomplished nothing and most tellingly they consistently drive people into the other camp over ludicrous arguments about “purity”. There’s a reason why they consistently draw 2 to 3 percent of the vote. Most of them are worried about helmet laws, pot and Aliens. Irrelevant they are.

  2. Andrew T.

    I think the best course of action to take regarding the NRA is to stand with the NRA every time that they are right on a bill, while consistently denouncing their blunders. This way, the NRA becomes stronger because it has more supporters, but is required to retain a level of ideological purity in order to retain your support.

  3. EN

    When California Senate Bill 420 took affect in 2004 it went a long way towards ending government oppression of Marijuana “users”. However, this wasn’t good enough for the LP–it couldn’t stand the idea of any regulation whatsoever. Most would rather thousands of people be incarcerated every year than allow any restrictions at all. They stood shoulder to shoulder with law enforcement on this issue. Two years later, the law enforcement predicted Apocalypse failed to materialize and more Californians then ever are convinced it’s a useless to criminalize it… no thanks to the Libertarians.

  4. AnIdea

    The reason I stopped being involved with the LP years ago is that they don’t understand “the perfect is the enemy of the good.” They were so busy fighting with each other over LP utopianism that they allow the other major parties to sprint even further ahead.

    The two party system has wrecked the country through incrementalism. Short of a full-blown second American revolution, the LP party is going to have to use the same tactics to undo the damage. They just don’t seem to grasp that big picture plans can be implemented in small steps instead of all at once.

  5. Alex

    One other comment (I hope I am not doing what you might consider ‘spamming’)…

    I see eye to eye a lot with MP. While you might advocate the idea of being a ‘realist’ and not a utopian, I think that he *is* being a realist.

    The problem that he conceptualizes, and one that I agree with, is that wee are so far gone that we can’t really do much. In all honesty, when was the last time we really had a major victory for liberty? The country continues to slide down a road of sludge, for reasons that MP explained; *both* conservatives and liberals are bad, even though liberals are much, much worse.

    I don’t want to sound defeatist, but nobody in American believes in the (really) free market, and nobody in America (really) believes in property rights, and (really) nobody in America believes in the idea of a classical liberal decentralized Republic.

    In a previous post, I mentioned that even early Americans, supposedly educated on the evils of a strong government, gave in to a lot of big government ideas.

    What chance do we have now of really doing anything? Again, not really any. This isn’t crying in a corner and stating we are better than everyone else in matters of politiics (although we are). This is stating a very *realist* approach, having nothing to do with utopia.

    [What has happened to you? You used to talk to the point. We are discussing Second Amendment Rights. Each time the NRA litigates the Castle Doctrine in an opposing state and wins, liberty is a little stronger. Your other post, in case you wondered, condescendingly mischaracterized my very public position on the libertarian law. The rules for posting are here.–IM]

  6. socalserf

    I much prefer the GOA and JFPO to the NRA. My human rights come from god, not a legislature or a constitution.

  7. EN

    “What chance do we have now of really doing anything? Again, not really any.

    Being armed is giving us a chance. Being armed and allowed to defend ourselves, something that’s not allowed in most western countries, is a net positive. Recent supreme court rulings on the matter are reaffirming that right and the NRA was behind it. Forgive me if I’m not getting the big picture but the little picture was covered very well By Fred Reed in his latest column.

    Roll Over, Bark, and Beg

    Fertilizer for the Pansy Bed
    http://www.fredoneverything.net/FOE_Frame_Column.htm

  8. Myron Pauli

    Ilana, your valued reader (me), has NO problems allying with the NRA or ACLU or any other group when they defend freedom but I do not wish to buy off on the “whole agenda” of many of these groups. For example: NRA’s adulation of one Antonin Scalia: he is the judge who ruled that elementary school children can be forced to give their urine to the government. [And this relates to the narrow cause of the NRA how?–IM] Scalia does not believe in habeas corpus for Jose Padilla or designated “enemy combatants”. Scalia did not even join O’Connor, Rehnquist, or Thomas on Gonzales v. Raich (does a medical marijuana smoker “interfere with interstate commerce”?!). Yes, Dick Cheney and the NRA may worship at the Church of Scalia but I claim that Scalia defends liberty only occasionally. [How you get from one point of the debate, the NRA and its narrow sphere of activism, and a tirade against Scalia is beyond my ken.–IM]

    Yes, for the most part, pro-gun matches pro-liberty. But the voters of Kenesaw, Georgia (in response to the gun confiscating idiots of Morton Grove, IL) voted to require homeowners to possess a gun. I think both of us would agree that Mohandas Ghandi has as much right to NOT own a gun as Charlton Heston has to own a gun. Gun rights should be based on liberty, not upon cultural preferences like vegetarianism.

  9. Barbara Grant

    I think it’s extremely important to celebrate any victory toward the cause of freedom. If we become pre-occupied with the larger picture (what is happening, on the grander scale, in this country) we risk becoming despondent and giving up the fight.

    As I’ve stated elsewhere, many people have been fighting valiantly for Second Amendment rights for many years, and they are achieving victories. Their efforts should be celebrated, and renewed vigor given to that cause.

    Please realize how much freer we are in America than folks are in the U.K., who don’t really have free speech anymore as we know it here. They are under strictures from their “masters” in Brussels, and woe befall anyone who goes against those proscriptions!

    We still have a lot of liberty in the U. S., and we need to continue to fight for it, celebrating one victory at a time.

  10. Myron Pauli

    Ilana, the Wayne LaPierre statement from your previous post basically endorsed McCain and lauded Scalia, admittedly on the gun issue (where McCain & Scalia are certainly BETTER than Obama & Ruth Ginsburg). This might be fine if McCain were only President for gun control vetoes and Scalia was only Justice for gun ownership cases. However, McCain carries the neo-con Wilsonian policy, McCain global warming, McCain immigration, McCain Feingold, and the list is nearly endless. And Scalia has his statist peccadilloes as I have pointed out.

    Certainly, any single-issue organization can look at the particular aspect of a candidate or judge that suits their fancy. When you look at the ENTIRE package, the Republicans – Nixon, McCain, Scalia, Bush, Cheney – have been leading the country down the road to serfdom – but they drive in the right side of the road and Clinton, Obama, and Ginsburg drive on the left side. I’ve watched “Republican-leaning” libertarians delude themselves for over 40 years since 1968 – I’m just old!

  11. james huggins

    The NRA isn’t perfect. They swim in polluted waters in order to get the job done. But to dismiss them for a lack some perfect adherance to a particular idea is foggy thinking at best. The NRA fights the battle for us all. And darned effectively.

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