October 4, 2004

GUNS AND GAYS: It’s often struck me that opposition to gay rights, and opposition to gun ownership, have a lot in common. Most people opposed to each are concerned as much with symbolism as with practical effects (you often hear comments prefaced with “I don’t want to live in a country where people are allowed to do that”) and it seems more an aspect of culture war than anything else.

Personally, I’d be delighted to live in a country where happily married gay couples had closets full of assault weapons. The Nashville Tennessean feels otherwise.

But here’s a question. We’re often told that Congressional efforts to repeal the D.C. gun ban are an affront to D.C. citizens’ right to self-rule. (See this post by Andrew Sullivan.) But those efforts are in support of an explicit Constitutional right to keep and bear arms — and since D.C. isn’t a state, there’s none of the usual argument about whether the Second Amendment should apply to its efforts or not.

So would a Congressional effort to overturn state bans on gay marriage in support of an unenumerated right to marry constitute a similar affront to local autonomy? I’m just, you know, asking. . . .

UPDATE: A law student reader from Yale (or at least one with a Yale email address) emails:

I’m in the midst of a Criminal Law class and my professor is very much into the “expressive” theory of law. He makes the very same point you do in the guns and gays post, but brings up several other examples as well, including “hate-crimes” legislation (“we don’t want to live in a place where we don’t adequately protect oppressed minorities”), partial birth abortion bans they only affect some minuscule percentage of all abortions, so it’s unlikely that the motivation is to save lives), or any other example where people are rabidly for or against something despite evidence that laws will have very little effect on the behavior in question.

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ANOTHER UPDATE: Gay gunblogger Jeff Soyer has thoughts here. I should note, for those who haven’t been reading InstaPundit long, that I have no problem with unenumerated rights. I do, however, find it odd that they so often seem to receive more judicial (and interest-group) solicitude than do rights explicitly enumerated in constitutions.