Rudy and the Second Amendment

Near the end of my second year finals this last spring, I read the recently released D.C. Circuit Court of Appeals case of Parker v. District of Columbia. My Constitutional Law class hadn’t covered the second amendment and so it was intriguing to me. Judge Silberman does an extensive treatment of the text of the 2nd Amendment, parsing through its tangle of clauses. Notably there is little Supreme Court precedent on the subject. Judge Silberman concludes:

[T]he Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).

Parker v. District of Columbia, 478 F.3d 370, 395 (D.C. Cir. 2007). In Rudy’s speech to the NRA (as reported by Marc Ambinder), Rudy refers to Parker v. District of Columbia as a source of persuasion in finding more utility for an individual right to bear arms. Yet, Rudy does some subtle hedging on his conversion:

"Your right to bear arms is based on a reasonable degree of safety," he said.

He indicated that he would oppose new efforts to tighten national gun laws.

"I believe that law enforcement should focus on enforcing the laws that exist on the books as opposed to passing new extensions of laws," he said.

Rudy concludes that the right to bear arms is, interestingly enough, not based on a constitutional provision, but on a reasonable degree of safety. When you think about it, that’s a pretty remarkable shift. Not based on independent (and constitutional) principles, Rudy believes that your right to bear arms is relative to your safety. That’s like saying your right to free speech is relative to your viewpoint.

Rudy also references that he would oppose any new laws restricting gun ownership, not because those laws are wrong, but because there are enough laws on the books as it is. Is this really a rationale that we are comfortable with? Nor does Rudy say that he would deregulate guns in anyway. Indeed, Rudy’s stance has not truly changed, but he has reframed his issues around policy judgments like safety and enforceability, not constitutional principles, making gun-owner rights still relative to his judgments.