Second Amendment: Beyond Politics or Against Politics?
A widespread belief is that the political system must be responsive to voters’ demands. But this is not obvious at all. Consider the following statement in the Wall Street Journal’s report on the adoption of a gun control bill by Congress (“House Expected to Approve Landmark Gun Legislation,” June 24, 2022):
The House was expected to pass the widest firearms legislation in decades Friday, hours after the bipartisan package won Senate approval, clearing the way for President Biden’s signature and giving supporters hope that the country’s political system can respond to mounting gun violence.
Suppose the majority of the voters are in favor of slavery or that they are at least willing to accept it in return for something else as part of political bargaining. Or suppose that, in order to reduce murders by 39%, a majority of American voters wanted to jail all young males from their 17th birthday until they turn 25. Should the political system be responsive to this? Many people, including libertarians, classical liberals, and your humble blogger, would answer no. What other people mean when they say that the political system should be responsive is that it should be responsive to what they want.
Libertarians and classical liberals believe that the political system should not be responsive to majority demands on certain issues. A constitution, written or unwritten, should aim at protecting individual rights in an autoregulated social order, whatever a political majority happens to want. Some “constitutional” principles are beyond politics.
But what should be and should not be beyond politics? To try and answer this question, it is useful to be cognizant with James Buchanan’s “constitutional political economy.” In this perspective, what should be beyond politics are general rules that could presumably meet the consent of every and all individuals—constitutional rules that govern and constrain day-to-day politics. Under these constraints, politics is the way citizens bargain toward non-unanimous collective choices that are presumed necessary for efficient social cooperation. (On this approach, you may want to have a look at my Econlib review of James Buchanan and Gordon Tullock’s classic The Calculus of Consent; and my review of Buchanan’s Why I, Too, Am Not a Conservative in Regulation.)
The implications of this abstract theory are not always obvious. They require reflection and analysis. To take a current example, the Second Amendment of the American constitution guarantees residents of this country the “right to keep and bear arms,” which cannot be abrogated nor abridged trough ordinary politics. The Supreme Court just reaffirmed the primacy of the Second argument over politics (although it still allowed political regulations that arguably contradict the principle). Imagine if the First Amendment was subject to constant political meddling. Citizens may unanimously want to change the constitution, but it is not crystal clear how we make sure that the amendment process is not corrupted by politics.
It is pretty clear that there could be no unanimity on abrogating or even weakening the Second Amendment, in which case the constitutional rule would stand and remain beyond politics. In practice, of course, if authoritarians and bigots become a stable majority and cannot peacefully persuade the rest of the citizenry, the constitution will likely be violated. Yet, the longer it holds and the more gridlock it creates, the more likely a temporary majority will be unable to abolish the liberties of a minority.
There is another answer the question of how to preserve the (conventional) rules that should be beyond politics but are undermined by politics. It is to escape politics altogether. Anthony de Jasay thus took a stand against politics, including in his book with this very title (Against Politics, Routledge, 1998). In this perspective, one believes or hopes that a system of individual liberty will work better without an overpowering state (see my discussion of Michael Huemer’s defense of anarchy in Regulation). If anarchy works, any individual would of course be free to keep and bear arms, or not, as he (or she) wishes.
One thing is pretty sure: a system where politics (defined as the making of collective choices without unanimous consent) is supreme cannot be trusted to preserve individual rights. The political system should not be responsive to every wish. And it cannot be responsible to every wish be as long as individuals hold different preferences and values.