Conservatism’s Real Constitutional Doctrine: Be Afraid!

Fear is what drives the right’s hypocrisy on the 2nd and 4th Amendments.

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The Second Amendment and the Fourth Amendment. They're like kissing cousins, separated in the Constitution by a mere 32 words. And lately they've been all over the news.

Now, I don't know how you feel about the amendments; maybe you have no opinion of them at all. But ask some conservatives and it's like they don't even appear in the same document. And when you think about it, that's a pretty strange thing. Pretty revealing, too. Here's why:

If you read the Second and the Fourth Amendments without knowing anything about the surrounding politics and then were asked which one conservatives like better, you might well pick the latter. If ever there was an amendment written to appeal to people who are skeptical of big government, this is it. There's the big bad government, it wants to take your property and your freedom, but the Fourth Amendment says "no way, not on my watch." It's a Tea Partier's dream.

[See a collection of political cartoons on the Tea Party.]

But conservative courts have spent the past few decades carving one exception after another out of the Fourth Amendment and, if the reaction to the Boston Marathon bombing is any indication, a loud contingent on the right is intent on finding even more.

No, it's the Second Amendment that most conservatives love. Try to pass even the most benign measure aimed at reducing gun violence, as the Senate did just days ago, and they'll marshal their every resource to defeat it. The reason: They say it's because they're strict constructionists and any restraint on guns would violate the plain meaning of the Second Amendment.

One approach to one amendment, a very different approach to another. How to reconcile? There's one thing that can help make sense of this mess: a marked lack of intestinal fortitude.

Let's say your thinking about criminal justice is principally governed by being afraid. In that context, if you think guns are an effective way to protect yourself, you'll want your right to have guns interpreted as expansively as possible, because you're afraid of what will happen to you if it isn't. And you'll want the rights of people who have been accused of committing crimes to be interpreted as narrowly as possible so they are taken off the streets. 

[See a collection of political cartoons on gun control and gun rights.]

As it happens, that's a pretty good summation of conservative doctrine when it comes to these amendments.

All of which reveals something else about how conservatives think when they look at the Constitution: It matters who its provisions are perceived to be protecting. Conservatives think the Second Amendment protects them, so they want it as unfettered as possible; but they think the Fourth Amendment protects someone who they find threatening, so they want it to be as weak as possible.  

You can take this approach to constitutional interpretation, of course, but if you do, please stop suggesting it has anything to do with fidelity to profound constitutional principles.

There can be no doubt that the Fourth Amendment makes it harder on law enforcement to solve some crimes, but it does so in the service of a larger goal: protecting the accused from the unfettered predations of an overreaching state or the passions of the mob. And, as has been roundly discussed, the idea that the Second Amendment was designed to allow every citizen to be a weapons armory all their own reflects a willful misreading of history.

[Read the U.S. News Debate: Should Congress Support Universal Background Checks for Gun Purchases?]

Both amendments reflect trade-offs that the framers consciously made. We may not like them, but they're there. And respect for the Constitution requires that we recognize them. If you call yourself a strict constructionist, you can't pick and choose which provisions of the Constitution you are going to strictly construe. If that's your approach, there's another word that may provide a more apt description: hypocrite.

In a lot of cases, fear is a good thing. It's a warning system that keeps us out of trouble, guides us away from danger, and, in some cases, keeps us alive. But when we allow fear to be the guiding principle of our public policy that gives rise to dangers all its own.

Many conservatives spend a lot of time portraying themselves as tough guys, straight shooters who don't let emotion get in the way of what has to be done. In the same breath they are likely to portray liberals as weak and craven. But this is just one example of how the reverse is true.

Setting aside something that makes you feel secure on a personal level in the advent of reforms that will actually make many others safer and sticking to the principles upon which our country was founded even in times of crisis -- that's what takes guts. And it's time for conservatives to show some.

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