“There used to be an almost complete scholarly and judicial consensus
that the Second Amendment protects only a collective right of the states
to maintain militias. That consensus no longer exists – thanks largely
to the work over the last 20 years of several leading liberal law
professors, who have come to embrace the view that the Second Amendment
protects an individual right to own guns.”

“My conclusion came as something of a surprise to me, and an unwelcome
surprise. I have always supported as a matter of policy very
comprehensive gun control.”

-Laurence H. Tribe
Harvard law professor

A Liberal Case for Gun Rights Helps Sway Judiciary
By ADAM LIPTAK
New York Times
May 6, 2007
http://www.nytimes.com/2007/05/06/us/06firearms.html?_r=1&hp=&pagewanted=pri
nt&oref=slogin

In March, for the first time in the nation’s history, a federal appeals
court struck down a gun control law on Second Amendment grounds. Only a
few decades ago, the decision would have been unimaginable.

There used to be an almost complete scholarly and judicial consensus
that the Second Amendment protects only a collective right of the states
to maintain militias. That consensus no longer exists – thanks largely
to the work over the last 20 years of several leading liberal law
professors, who have come to embrace the view that the Second Amendment
protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional
law, they have helped to reshape the debate over gun rights in the
United States. Their work culminated in the March decision, Parker v.
District of Columbia, and it will doubtless play a major role should the
case reach the United States Supreme Court.

Laurence H. Tribe, a law professor at Harvard, said he had come to
believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome
surprise,” Professor Tribe said. “I have always supported as a matter of
policy very comprehensive gun control.”

The first two editions of Professor Tribe’s influential treatise on
constitutional law, in 1978 and 1988, endorsed the collective rights
view. The latest, published in 2000, sets out his current interpretation.

Several other leading liberal constitutional scholars, notably Akhil
Reed Amar at Yale and Sanford Levinson at the University of Texas, are
in broad agreement favoring an individual rights interpretation. Their
work has in a remarkably short time upended the conventional
understanding of the Second Amendment, and it set the stage for the
Parker decision.

The earlier consensus, the law professors said in interviews, reflected
received wisdom and political preferences rather than a serious
consideration of the amendment’s text, history and place in the
structure of the Constitution. “The standard liberal position,”
Professor Levinson said, “is that the Second Amendment is basically just
read out of the Constitution.”

The Second Amendment says, “A well regulated militia, being necessary to
the security of a free state, the right of the people to keep and bear
arms, shall not be infringed.” (Some transcriptions of the amendment
omit the last comma.)

If only as a matter of consistency, Professor Levinson continued,
liberals who favor expansive interpretations of other amendments in the
Bill of Rights, like those protecting free speech and the rights of
criminal defendants, should also embrace a broad reading of the Second
Amendment. And just as the First Amendment’s protection of the right to
free speech is not absolute, the professors say, the Second Amendment’s
protection of the right to keep and bear arms may be limited by the
government, though only for good reason.

The individual rights view is far from universally accepted. “The
overwhelming weight of scholarly opinion supports the near-unanimous
view of the federal courts that the constitutional right to be armed is
linked to an organized militia,” said Dennis A. Henigan, director of the
legal action project of the Brady Center to Prevent Gun Violence. “The
exceptions attract attention precisely because they are so rare and
unexpected.”

Scholars who agree with gun opponents and support the collective rights
view say the professors on the other side may have been motivated more
by a desire to be provocative than by simple intellectual honesty.

“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger
Williams University, wrote in a 2000 study of Second Amendment
scholarship. “Liberal professors supporting gun control draw yawns.”

If the full United States Court of Appeals for the District of Columbia
Circuit does not step in and reverse the 2-to-1 panel decision striking
down a law that forbids residents to keep handguns in their homes, the
question of the meaning of the Second Amendment is almost certainly
headed to the Supreme Court. The answer there is far from certain.

That too is a change. In 1992, Warren E. Burger, a former chief justice
of the United States appointed by President Richard M. Nixon, expressed
the prevailing view.

“The Second Amendment doesn’t guarantee the right to have firearms at
all,” Mr. Burger said in a speech. In a 1991 interview, Mr. Burger
called the individual rights view “one of the greatest pieces of fraud -
I repeat the word ‘fraud’ – on the American public by special interest
groups that I have ever seen in my lifetime.”

Even as he spoke, though, the ground was shifting underneath him. In
1989, in what most authorities say was the beginning of the modern era
of mainstream Second Amendment scholarship, Professor Levinson published
an article in The Yale Law Journal called “The Embarrassing Second
Amendment.”

“The Levinson piece was very much a turning point,” said Mr. Henigan of
the Brady Center. “He was a well-respected scholar, and he was
associated with a liberal point of view politically.”

In an interview, Professor Levinson described himself as “an
A.C.L.U.-type who has not ever even thought of owning a gun.”

Robert A. Levy, a senior fellow at the Cato Institute, a libertarian
group that supports gun rights, and a lawyer for the plaintiffs in the
Parker case, said four factors accounted for the success of the suit.
The first, Mr. Levy said, was “the shift in scholarship toward an
individual rights view, particularly from liberals.”

He also cited empirical research questioning whether gun control laws
cut down on crime; a 2001 decision from the federal appeals court in New
Orleans that embraced the individual rights view even as it allowed a
gun prosecution to go forward; and the Bush administration’s reversal of
a longstanding Justice Department position under administrations of both
political parties favoring the collective rights view.

Filing suit in the District of Columbia was a conscious decision, too,
Mr. Levy said. The gun law there is one of the most restrictive in the
nation, and questions about the applicability of the Second Amendment to
state laws were avoided because the district is governed by federal law.

“We wanted to proceed very much like the N.A.A.C.P.,” Mr. Levy said,
referring to that group’s methodical litigation strategy intended to do
away with segregated schools.

Professor Bogus, a supporter of the collective rights view, said the
Parker decision represented a milestone in that strategy. “This is the
story of an enormously successful and dogged campaign to change the
conventional view of the right to bear arms,” he said.

The text of the amendment is not a model of clarity, and arguments over
its meaning tend to be concerned with whether the first part of the
sentence limits the second. The history of its drafting and contemporary
meaning provide support for both sides as well.

The Supreme Court has not decided a Second Amendment case since 1939.
That ruling was, as Judge Stephen Reinhardt, a liberal judge on the
federal appeals court in San Francisco acknowledged in 2002, “somewhat
cryptic,” again allowing both sides to argue that Supreme Court
precedent aided their interpretation of the amendment.

Still, nine federal appeals courts around the nation have adopted the
collective rights view, opposing the notion that the amendment protects
individual gun rights. The only exceptions are the Fifth Circuit, in New
Orleans, and the District of Columbia Circuit. The Second Circuit, in
New York, has not addressed the question.

Linda Singer, the District of Columbia’s attorney general, said the
debate over the meaning of the amendment was not only an academic one.

“It’s truly a life-or-death question for us,” she said. “It’s not
theoretical. We all remember very well when D.C. had the highest murder
rate in the country, and we won’t go back there.”

The decision in Parker has been stayed while the full appeals court
decides whether to rehear the case.

Should the case reach the Supreme Court, Professor Tribe said, “there’s
a really quite decent chance that it will be affirmed.”

The Second Amendment IS Homeland Security !