Re the Second Amendment+why we can't adopt a rational agriculture policy

Sandy Levinson

Although I could have simply put most of this as a long comment to Jack's excellent post, I thought that I'd put it in a separate posting. So, for the record:

1) Though I'll confess to being delighted to be mentioned in our "paper of record" (or anywhere else, so long as nobody calls me "stupid"), I think that its goes embarrassingly overboard in imputing causal efficacy to me and my associates with regard to the Fifth and DC Circuit decisions on the Second Amendment. I agree with Jack that one has to "credit" that particular social movement called the NRA, plus the fact that the Republican Party, by winning the presidency and being able to appoint conservative judges, put in place at least some judges who would credit a "stronger" reading of the Second Amendment. No doubt these judges are pleased to quote political liberals, but that says nothing about causation. All good brief writers know to quote "surprising" support for their views, along with more predictable citations.

What cuts against the "causal" hypothesis is that no judge identified as "liberal" has, to my knowledge, announced a change of mind following reading anything that Amar or I, or especially Tribe, by far the most important of all of us, has written.

2) The Second Amendment is a wonderful example of the tension between "static" and "dynamic" interpretation. Most liberals seem to believe that it is sufficient to address what the Amendment (might have) meant in 1791, and they usually offer a quite limited meaning, i.e., the "state militia" account. As it happens, I think that a broader reading is equally legitimate, but let's assume for the moment that my friends Jack Rakove and Paul Finkelman, among many others, are correct in their quite modest readings of what Jack Balkin would call the original "expected meaning" of the Amendment. The fact is that by the mid-19th century, as Akhil in particular has shown, what has come to be called the "individual rights" view has gained real purchase, the best evidence being Dred Scott, of course, though there is also evidence from the Reconstruction Era, as Jack notes.

3) I continue to believe that the Democratic Party has paid a real price by supporting essentially symbolic ("expressive") legislation that really doesn't do much to "control" firearms, but does work very effectively to drive Democratic voters into the waiting arms of a Republican Party that appears to treat them with respect (even as it is ruthlessly indifferent to their "class" interests). No sane Democrat could believe that passage of the 1994 "assault weapons ban" was worth the price of losing the House of Representatives. (Morris Fiorina has estimated that the bill cost the Dems at least six seats, including those of Speaker Foley (Eastern Washington) and Judiciary chair Jack Brooks (from Texas).)

4) Changing the subject: The Times Magazine also published a brief letter to the editor commenting on an article by Michael Pollan that argued that we were oversubsidizing the growing of crops that are bad for us (e.g., corn and soy). He writes, for example, "The reason the least healthful calories in the supermarket are the cheapest is that those are the ones the farm bill encourages farmers to grow." Not surprisingly, he concludes by begging Congress to vote for a "better" farm bill. I found his article quite compelling, but doubted that his plea would be effective. Regular readers will recognize the source of my letter:

The fact that each state has an equal vote in the Senate means that the “farm states,” which tend to be small-population states, have political clout out of proportion to their actual population. One might hope that political leaders would learn the lessons Pollan is trying to teach. But our very political system makes it almost certain that, even if leaders try to lead, they might well be defeated not by the force of better argument but by an American political system that deals from a stacked deck as we try to adopt a sensible farm policy.

This simply underscores, yet once more, that there are real costs attached to our "hard-wired" structures. Whatever the Framers intended, the "equal representation in the Senate" rule does its own part in contributing to obesity and the diabetes epidemic in the US.

Posted 5:50 PM by Sandy Levinson [link]