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What’s Immutability Have to do With Civil Rights?

It's hard to disagree that there’s a difference between race, sexual orientation, and carrying a firearm, and I think most reasonable people would agree that racism has been far more of a scourge in our society than discrimination based on less immutable characteristics, such as gun ownership. But I think the Brady Campaign is really missing the larger picture when it comes to how we treat rights of citizens, weather based on immutable or non-immutable characteristics. We protect against much discrimination based on non-immutable characteristics in our society. Especially expressions and behaviors protected in our constitutional structure.

Religion, for instances, is non-immutable, yet we generally protect religious minorities in society in the same way we protect racial minorities. Would it not be outrageous if a retail business decided to ban people wearing wiccan symbols, yarmulkes, or hijabs, or refused to make reasonable accommodation for its employees who were religious minorities? Religious symbols are easily something that can be "left at home" or "left outside" too. Would it matter if proponents argued that it’s just the symbols, not the person they have a problem with? I think most people who valued individual liberty would see through such arguments. We would expect victims of this kind of discrimination to call it such, and to dress their arguments in civil rights language. That would be completely within the American experience when it comes to debating civil rights in our society.

But it’s not just religion. While many would argue that homosexuality itself is an immutable characteristic, homosexual behavior certainly is not. What if a movie theater chain decided that it would allow gays into its theaters, but you have to leave the gay behavior at home. No holding hands, snuggling next to each other in the theater seats, and for God’s sake, no kissing! Would we not expect gay rights activists to complain of discrimination? Would we expect they would accept it's not them we hate, just their homosexual behavior? Of course we wouldn't, and I suspect many of the same folks who penned this article at the Brady Campaign would join in fighting such discriminatory practices.

The Bradys will no doubt argue that, unlike religious symbols or homosexual behavior, guns kill people. But that's really a different debate. That's a debate for whether we should allow the keeping and bearing of guns by individual citizens -- a debate the Brady Campaign has largely lost. It’s very difficult to escape the language in DC v. Heller that strongly suggests that carrying a firearm for personal protection is an individual civil right — recognizing the longstanding notion in common law that the right to protect ones own life is indeed fundamental. As much as the Bradys wish this were a debate about guns, it's really a debate about rights. Why should we be any less outraged that the Brady Campaign is petitioning to frustrate the exercise of the Second Amendment than we would be if they were petitioning to frustrate the First?

The pro-Second Amendment argument has been, all along, is that the right to keep and bear arms deserves to be treated as seriously as other rights within our constitutional structure. Discrimination against the exercise of a right is discrimination against the people who choose to exercise it.


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