Wednesday, March 05, 2008


Via the Volokh Conspiracy, a bit of news and a link to a Wall Street Journal op-ed by Laurence Tribe on the DC v. Heller case I mentioned last month.

Tribe urges that the Supreme Court should explicitly limit its decision in Heller to the terms of the Federal government's power to restrict the right to keep and bear arms on a Federal reservation, leaving aside the question of the extent to which states or the Federal government can restrict ("regulate") the right in other contexts. Tribe contends that such a decision would be consistent with the principle of judicial restraint (pause for all lawyers who graduated in the last twenty years to recover from their faint at the prospect of Larry Tribe urging judicial restraint) and appropriate because "scholarship on the reach of the Second Amendment and its implementation is still in its infancy". Hubris, thy name is law professor. The extent of legal scholarship on any given subject is hardly determinative of whether that subject presents a question of law. For any who've read about this sort of thing for a while, Tribe's statement is particularly exasperating and amusing because much of the recent scholarship on the Second Amendment can trace a fair part of its inspiration to an article by Professor Sanford Levinson which appeared in the Yale Law Journal nearly twenty years ago and titled "The Embarrassing Second Amendment". In that essay, Professor Levinson mentions Tribe's near exclusion of the Second from discussion in his widely distributed (as a required text in law schools) constitutional law treatise. Because Levinson is a respected legal scholar and also a self-avowed liberal, his article attracted a fair amount of attention. Somewhat famously, Tribe later examined the resulting new scholarship and changed his treatise to reflect his new found opinion that the Second Amendment protects an individual, rather than a collective right. Thank God John Locke and Edmund Burke engaged in a bit of new scholarship and and those other crazy guys who wrote our Constitution went ahead with those ideas, rather than waiting for them to be adopted by the academy.

Tribe also believes that the fact of an individual right presents no limitation to gun control measures. To whit (and from the WSJ op-ed): "The lower court's decision in this case [Heller] -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms." Tribe ignores the fact that the D.C. Circuit also found the law at issue's requirement that you keep your shotguns and rifles locked up separately from your ammunition, basically unavailable on any sort of short notice, unconstitutional. I truly look forward to Professor Tribe explaining how an individual right memorialized in the Constitution can be restricted on the basis of location (which is to say urban or densely populated areas) and that restriction pass strict scrutiny. Perhaps he does not consider the latter a plausible standard of review.

Just a bit more- Tribe: "Equally foolish would be a decision tilting to the other extreme and upholding the lower court's decision simply because the right to bear arms is, judicial precedent to the contrary notwithstanding, a right that belongs to citizens as individuals. Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing." Nice of the professor to note that judicial precedent hasn't been kind toward the Second Amendment, too bad he neglects the "shall not be infringed" part of the amendment. "Brandish" is a nice touch, too. We've gone from a pistol in the night stand to citizens wildly waving such about in the space of two sentences. Personally, I fall in the "bear" school of gun handling, never having had cause to "brandish", though I might if I could avoid having to shoot someone by virtue of running them off with a little brandishment.

p.s.- if you want to get a nice primer on the Second Amendment and the individual rights view, I cannot recommend Professor Levinson's piece highly enough.

p.p.s.-original title of this post changed to something more clever thanks to the suggestion of a reader.


Kevin said...

Excellent piece, and I second your recommendation of The Embarrassing Second Amendment as well. And if I may toot my own horn, (and you've got an hour or two) may I also suggest my recent post Of Laws and Sausages on the topic of how we got to D.C. v. Heller?

mdmnm said...


Thanks, and thanks for the link to your very nice synopsis on the path to the law-as-it-is.

Steve Bodio said...

"I might if I could avoid having to shoot someone by virtue of running them off with a little brandishment. "

Love that line and will quote it.