Posted: 5/6/2007 10:50:19 PM EDT
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I got this from Volokh.com Before you go flaming the thread title, read the article. Very interesting, and good for us! A Liberal Case for Gun Rights Sways Judiciary By ADAM LIPTAK Published: May 6, 2007 Correction Appended 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.” |
I did. The libs started arguing for individual interpretation. Which is true. I just added my thought. 
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wow. just wow. Actually, I think I'm glad that I was too young at the time to have noticed/cared about such a statement. |
That was a true bad time for gun owners. I really thought at the time we would have confiscations within 20 years. It is amazing how it has changed. |
Ackatually, Warren Burger should have been paying a little more attention to what his colleagues on the Supreme Court were saying at about the exact same time Burger was spouting his ill informed opinions off to the media. In Verdugo-Urquidez vs the U.S.(1991), the Rhenquist Court issued an opinion (not a decision) relating to this case in which they said (5 to 4) that "the people" as stated in the Second Amendment refers to the people as individuals and NOT to the States, similarly as it does in all the other Amendments of the Bill of Rights in which the term "the people" is used. |
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The Liberals continue to rewrite history even as they conceed defeat. The idea that there was ever a collective interpretation "consensus" of the Second Amendment is pretty much a liberal fiction (except of course in their OWN minds). The individual rights interpretation was a factor in all the previous Supreme Court rulings. Perhaps the usual suspects (liberal law professors, mostly) and some of the Federal Distict Courts had a collective rights interpretation, it was never the "universal" view the liberals are now trying to convince everybody it once was. |
I nominate Linda Singer for "tarring and feathering." Not only because she's a gun-grabbing person in authority, but because she's so f*cking stupid. Washington, DC has been #1 in the nation many times since that ban went into effect...and is still quite high on the list despite decades of banning guns. |
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Even if we settle the individual right side of it, we then must decide it it's a basic right that deserves "strict scrutiny" or a lesser right that can be abused as it is now by laws that have a "rational basis". In the latter case nothing much would change. As far as the liberal slant on this goes it's also important to ask yourself why liberals were on the gun control side of the issue in the 60's Civil Rights Era and going forward. Depriving gun rights to blacks was part and parcel of their oppression for 200 years. And how did blacks believe in this party and that being disarmed and agreeing to it was in their favor. Well, some of them didn't buy into it, the criminal element. 
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ALL of the Circuit Court of Appeals except for the 2nd (didn't rule on it) and the 5th (Emerson) held that the 2nd was a collective right. That's pretty much a consensus. |
I originally read over the article to fast to see her title. So you can imagine my bias on the subject that I agreed. This was a matter of life or death. Just that being disarmed was a death sentence to the otherwise law abiding gun owners. |
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interesting article for sure, but i always cringe when i read "the commonly accepted 'collective rights' view", "the unanimously agreed upon 'right' for states to have militias", etc. they print it in every gun article like it's already 100% accepted as the truth. i think [more then anything else] they are just trying to convince everyone else, since the only people that are 100% in agreeance that the second amendment DOESN'T protect an individual right, are the few ultra-liberals. |
Yes, I'll accept that as far as it goes. Part of my point (although I didn't articulate it) is that it's important to look at this temporally as well. In other words, over how much elapsed historical time have the District Courts held this view? Are we speaking of just the period of liberal acendancy post WWII? What about since the founding of the country? Hey, I'm an amateur scholar of legal history, but I believe that the Liberal view is consistant in its overreaching.
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My info doesn't agree. 1st CC Individual 2nd CC None 3rd. Not Clear 4th Collective 5th Individual US v. Emerson 6th Individual US v. Day 7th None 8th Individual US v. Decker 9th. Collective 10th Individual US v. Swindon 11th Individual Gilbert Equip. v. Higgins 1989 www.firearmsandliberty.com/fedcases.2nd.html Two are clearly collective, the 4th and 9th. The 6th I'm not sure of. 3rd and 7th don't seem to have cases that would establish either. I will say that some decisions are construed (like Miller) to claim the "collective" but fall short of the clarity of the 4th and 9th opinions. |
i'll respond later, as it might take a little time. But most of them are based off of an incorrect reading(imo) of Miller. |
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About 3-4 years ago I attended a seminar at the Harvard School of Law on the subject of the 2nd amendment. The guest speakers were Eugene Volkh, Alan Dershowitz (yes... that Alan Dershowitz), and Michael Barnes (from the Brady Campaign). It was actually kind of boring with most of the speakers elaborating on their interpretation of the 2nd amendment and it relevancy to todays society. One of the more interesting comments came from Dershowitz. He stated that while he personally hated firearms and that he wished the 2nd amendment had never been included in the BOR, he agreed with the individuals RKBA. |
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I agree with most of the article. I think Tribe's conclusion that the 2nd recognizes an individual right got the pendulum swinging back in the right (IMO) direction. That said, I'd like to see some citations to support the following assertion in the article:
I think it's a bit of an overstatement. |