Commentary: What liberals miss about the Second Amendment

When it comes to guns, it often appears as though liberals and conservatives are speaking different languages. Liberals express their horror at each new mass shooting and demand government action, while conservatives call for “thoughts and prayers” and insist on respect for the Second Amendment.

The constitutional argument usually leaves liberals cold, but it would be more recognizable if they gave it more thought. There is in fact a symmetry between liberal and conservative approaches to the Constitution, which explains a lot about the intractable nature of the gun problem.

Both sides read the same Bill of Rights, of course, but they tend to emphasize different provisions. Liberals, for example, make a priority of the Fifth and Sixth Amendments, which guarantee accused suspects the right to remain silent and the appointment of counsel when facing prosecution.

Although these rights are well established by U.S. Supreme Court cases such as Miranda v. Arizona and Gideon v. Wainwright, they are still questioned by many conservatives who see them as just one more way of coddling criminals. Why should even terrorism suspects be read warnings before interrogation? And why should cash-strapped local governments have to spend millions of dollars providing lawyers for obviously guilty defendants? Worst of all, why should a criminal’s confession be thrown out simply because the arresting officer made a technical mistake?

Liberals, in contrast, believe that procedural due process protects the public from overreaching by the police. Without the Miranda and Gideon rules, innocent people might be convicted and ordinary citizens might find themselves arrested and locked up for no good reason. It is true that guilty defendants might sometimes be released, but, as liberals will explain, that is the price of freedom for everyone else.

Conservatives prioritize the Second Amendment, which, under the recent Supreme Court cases District of Columbia v. Heller and McDonald v. Chicago, guarantees the right to keep and bear firearms for personal protection. Under the decisions in Heller and McDonald, every state now allows “concealed carry” of handguns, and many allow “open carry” of assault rifles and other weapons.

This is baffling to liberals, who cannot understand conservatives’ constitutional reverence for firearms. Why would anyone need to own multiple semi-automatic handguns and rifles, large-capacity magazines or bump stocks that make it possible to fire hundreds of rounds per minute? Every school shooting, such as the most recent one in Parkland, Fla., brings new calls from liberals for some form of gun control, followed by outrage and consternation when legislatures fail to act.

The response from conservatives, led by the National Rifle Association, is that gun ownership is a “fundamental right” that simply cannot be diminished by the government. They consequently object to even small measures — such as limiting magazine size or requiring universal background checks — because they see them as preliminary steps toward abrogating the Second Amendment itself.

You will seldom hear them say it, but conservatives apply the same logic as liberals when it comes to the consequences of protecting individual rights. As Bill O’Reilly once explained, mass shootings — in schools, churches, shopping malls and theaters — are just the price of freedom under the Second Amendment.

It may seem that liberals and conservatives do not understand each other when it comes to the Bill of Rights, with one side extending too much protection to criminals and the other tolerating too many guns. But in fact, they are really engaging the same calculus of societal risk and constitutional reward, although premised on different values and with dramatically different results. The constitutional visions mirror each other, but they are not equivalent. In the name of procedural fairness, liberals are willing to see suspects go free, although the actual number is quite small. For the sake of their own guns, conservatives are willing to abide the slaughter of innocents, and the death toll keeps rising.

Steven Lubet is a law professor at Northwestern Pritzker School of Law and director of the Bartlit Center for Trial Advocacy. He wrote this for the Chicago Tribune.