Let the Golden Age End

by publius

If I were the plaintiffs in the Heller Second Amendment case, I would file an amicus brief with nothing but the HBO John Adams mini-series attached. Looking back to 18th century Boston, it’s much easier to see how guns and militias provided important checks on government overreach. The problem, though, is that the colonial era has passed. The expansive gun rights of that era would have far different effects in post-industrial urban society.

And that leads to one of my broader criticisms of American conservatism -- from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life -- and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though.

To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.

The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?

The answer, I think, turns on the type of place you live in. If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way. Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants. And long as Congress doesn't ban militias, we're all good.

The broader point, though, is that the analysis should acknowledge changing conditions. Extreme gun rights advocates like to pretend we all live in John Adams’ world. In that world, millions of complete strangers don’t live right on top of each. There, militias actually do further liberty. In our world, however, things are different. Millions of strangers are in fact clustered together. In our world, nuclear-powered industrialized armies have far more formidable weapons than muskets and cannons.

To be clear, I’m not saying we should ban guns. I’m just saying the Second Amendment is an artifact from a different era, and that its artifact-ness should influence our reading of it. More specifically, the fact that it’s a relic of the musket era should, at the least, allow modern legislatures some leeway in interpreting it.

To move beyond guns, the commerce clause is another area whether the realities of modern life aren’t exactly reckoned with. If, for instance, Justice Thomas had his way, the Court could impose rather drastic restrictions on Congress. Indeed, it’s even possible that Thomas’s reading would find legislation like the Clean Air Act – or even agencies like the EPA – to be unconstitutional. As any first-year conlaw student knows, these opinions aren’t new. They trace back at least to the New Deal.

Other than its border-line insane practical recklessness, what bothers me about Thomas’s restricted commerce clause is its failure to account for the needs of modern post-industrial life. In a small-town world without global economic integration, then maybe we could count on little “r” republican virtue to ensure that people don’t pollute, or that old people don’t starve or whatever.

But in a modern world, we can’t. States face collective actions problems and races to the bottom, and simply can’t be counted on to provide meaningful redistribution or sufficient environmental protections. The national administrative state wasn’t a tyranny forced upon the public – it was a response to the needs of an urban, industrialized country of strangers.

Moving out of law, the reliance on family and community structures to pick up the slack just isn’t realistic. For instance, in Social Security debates, you hear some conservatives argue that we should rely more heavily on charity and family structures. Indeed, Social Security is even seen as an attack on these institutions.

Social Security, however, is a response to the failure of these institutions in a modern urbanized society. Again, we don’t live in 18th century Boston. We live in a Eleanor Rigby world where families are scattered, where people don’t know their neighbors, and where old-time community networks just don’t exist (or at least nowhere near the extent they used to, if they even existed then). And as for charity, the idea that it alone could replace a system of coercive taxes and universally administered distribution is just silly.

To be blunt, ending Social Security means that some elderly people will starve – or at the very least will live in extreme poverty, just like they used to. Today, by contrast, people don’t really starve in America anymore – and this abomination is one of the more dreadful tyrannies of the New Deal and Great Society.

I’m sure there are other examples. And of course, many conservatives hold positions that don't rely on visions of an idealized past golden era lost in a fallen corrupted world. Conservative thought is diverse and incorporates many strands. But in some of these strands – ones we’ve seen from the New Deal up through Heller – conservatives are unwilling to fully accept that post-industrialized urban society has specific needs that only government can meet.

UPDATE: Feddie responds here. He echoes one of my gripes with conservative jurisprudence -- specifically, this whole bit about how the Constitution is "static" and we should deal with it. But that's ducking the question really. Let's assume for the sake of argument that the meaning is "static" - that still doesn't address the indeterminacy problem. A text could have a static meaning in that it statically provides two to five to ten plausible readings.

In other words, you can't just say "static" and be done with it. You have to say (1) it's static; and (2) here's what that static meaning is. For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we're essentially just deciding and arguing on policy grounds anyway, let's just be open about it. Let's get rid of the facade that this is being determined by something other than policy and political preferences.

UPDATE 2: More at the new blog Appellate Review.

Comments

[John Thullen]

But, I figure everyone can use the eggs.

[felix culpa]

We can all use a few eggs. Nourishing, and after a week or so they are primed (sic) for use in constitutional debates.
But beware the feathered militia. Rubber feathers, rubber bullets, which are more vicious than you’d think. Probably pretty viscous too. Like a hard-boiled egg.
Unlike Thullen who doesn’t have a hard-boiled bone in his body.
So beware chicken militias, especially if you hang out at the KFC; they’re on the march to overthrow a tyrannical regime.