32 Pages Posted: 18 May 2002
This paper extends the argument made in Sanford Levinson's 1989 article, The Embarrassing Second Amendment, in which he made the case for a broad reading of individual gun rights consistent with liberal Warren Court jurisprudence. I first note that the Second Amendment poses an anomalous "quadrilemma" for anti-gun liberals: it must be either a minor technicality about federalism and regulation; a moot constitutional prop for a vestigial military concept; an illegitimately disrespected part of the sacred panoply of rights enacted in 1791; or--the ultimate challenge for liberals--a wholly illiberal or retrograde provision of the Bill of Rights. This last reading becomes plausible once we avoid the constitutional sentimentalism whereby we strive mightily to ensure that our views on the constitutionality of legislative policy are roughly harmonious with our views of the wisdom of legislative policy. This reading finds some support in the perceived historical fact that the United States is an exceptionally violent or homicidal nation, so that its commitment to individual rights, properly applied to guns, leads to social disaster. Thus, I add the assumption of "American violence exceptionalism" to the mix of embarrassments evoked by the Second Amendment debate, and I then consider how both anti-gun liberals and pro-gun conservatives in the Second Amendment debate deal with the violence exceptionalism problem. For example, the pro-gun side often adopts a posture of tragic, acquiescent wisdom towards American violence, accepting some irreducible level of violence and even arguing that we may have achieved "optimal" violence. Meanwhile, anti-gun liberals needs to find ways to decry American violence while also reconciling the fact of our violence exceptionalism with their reliance on some sense of core American values that can animate a liberal constitutionalism.
Suggested Citation: Suggested Citation
Weisberg, Robert, Values, Violence, and the Second Amendment: American Character, Constitutionalism, and Crime. Houston Law Review. Available at SSRN: https://ssrn.com/abstract=311082 or http://dx.doi.org/10.2139/ssrn.311082