A Liberal Case for Gun Rights Helps Sway Judiciary
By ADAM LIPTAK
Published: May 6, 2007
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.”

(Page 2 of 2) (page 18 in the paper…)

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 !