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

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.