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How Liberals Saved the Second Amendment:

Adam Liptak has an interesting article in today's NYT on how the "individual rights" interpretation of the Second Amendment became the dominant view.

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.

UPDATE: Jack Balkin has some thoughts here.

UPDATE: Michael Dorf expresses some skepticism here.

Related Posts (on one page):

  1. Scholars and the Second Amendment:
  2. How Liberals Saved the Second Amendment:
PersonFromPorlock:
Fascinating. I wonder if conservatives had anything to do with it? Apparently not, it's all down to the intellectual integrity of a few liberal law professors.
5.6.2007 10:35am
Bob_R (mail):
It's interesting that the article fails to mention political pressures like Democratic losses in 2000 and blows to moral like Bellesiles' fraud. Sweet reason sometimes need a little push, but the NYT is too polite to mention it when certain people are being pushed.
5.6.2007 10:39am
Brett Bellmore:
I doubt that the scholarly consensus would ever have changed, if public opinion hadn't remained resolutely in the individual rights corner the whole while academia took that bizzare trip into scholarly cloud koo koo land. Liberals only saved the Second amendment after being dragged kicking and screaming into seriously addressing the merits of the arguments.

Take Tribe, for instance: Published two volumes of his work on Constitutional law, promoting the collective rights 'interpretation', and only switched over as a result of finally doing some study in order to thuroughly debunk the individual rights case. Only to find that it couldn't be debunked.

Never would have happened if the public had meekly aquiesced to academia's misreading of the 2nd amendment.
5.6.2007 10:44am
wuzzagrunt (mail):
That article is positively Onionesque.
5.6.2007 11:01am
another_townie (mail):
Brett:

Not sure what "public opinion" you are referring to as polling has consistently shown broad support for stricter gun control over the last decade, including a tightening of controls on semi-automatic pistols and certain types of semi-automatic rifles (I will refrain from using the term "assault rifle"). Indeed, those numbers have consistently indicated those in favor of tighter gun control by at least 15% since 1990. I would note that a broad majority of Americans also support the private ownership of firearms, esp. longarms, but to turn that into the broad opinion you proffer is unfounded.
5.6.2007 12:28pm
therut:
Polls will get you in trouble most of the time. You realize that though I am sure. Push polls and such mean nothing but propaganda. Ah yes, we now are told the liberals have become so enlightened that they alone are going to save another individual right. Sure. I bet this also will become a known fact. In about 10 years a poll will show it was the liberals alone along who loved the 2nd amendment. History will be re-written to make good propaganda.
5.6.2007 12:59pm
TommyK:
Didn't Eugene Volokh himself contribute a bit to the scholarly debate on this issue? I didn't realize he was a liberal, given that he was a member of the Federalist Society at UCLA and votes Republican.
5.6.2007 1:06pm
frankcross (mail):
I think the point is that when leading liberal constitutional scholars came on board, the contrary position became unsustainable. It's no surprise for conservatives to be taking a position considered conservative, and hence it is less persuasive. A key to growth is people who are able to put some principle ahead of political convenience. And Sandy Levinson had this quite some time ago.

I think the academy has far too little of this -- people saying they were wrong in the past. Conservatives saying the law dictates a liberal conclusion, and vice versa. But when it happens, it's significant.
5.6.2007 1:20pm
Steve Lubet (mail):
Dog bites man: not news.

Man bites dog: news.
5.6.2007 1:40pm
Spartacus (www):
The fact that liberals have finally (though not universally) begun to accept the correct view of the meaning of the 2d amdt. doesn't mean that they have endorsed the policy ofjectives of gun rights activists. Many of the sacholars who helped bring this truth to light (e.g., Levinson and Tribe) are in favor of much stricter gun regulation or even ouright prohibition; Heck, Levinson advocates a new constitutional convention because he believes ours is such a mess. I'm sure his new constitution will not have a right to bear arms. In fact, he has said as much.
5.6.2007 1:43pm
dwlawson (www):

Heck, Levinson advocates a new constitutional convention because he believes ours is such a mess. I'm sure his new constitution will not have a right to bear arms. In fact, he has said as much.


He is free to propose whatever he wants. I believe that an attempt to repeal one of the bill of rights will cause a huge uproar.
5.6.2007 1:53pm
frankcross (mail):
Spartacus, that's the point. They are taking constitutional positions contrary to their policy positions. That's what is significant.
5.6.2007 1:56pm
Andrew Okun:
Ok, step back for a moment here.

From what I gather here and in the NYT article, the collective rights view has held sway in the courts for rather a while. When was the last time the Supreme Court took the view that the 2nd Amendment stated an individual right?
5.6.2007 2:09pm
eforhan (mail):
How Liberals Saved the Second Amendment:

Dr. Orwell. Paging Dr. Orwell.
5.6.2007 2:20pm
wuzzagrunt (mail):
eforhan: when the book comes out, it will take a place of honor right next to my copy of "How Liberals Won the Cold War".
5.6.2007 2:27pm
Andrew Okun:
Ok, looked it up and never mind.

the whole while academia took that bizzare trip into scholarly cloud koo koo land.

Now that I've taken a brief tour through the fog bank of second amendment law, courtesy of wikipedia and findlaw, I can't see how this characterization is correct. This reads as though everyone saw clearly that the amendment guaranteed untrammeled individual gun ownership rights until some nutty liberal lawyers, taking a break between joints in 1968, propounded a lunatic reinterpretation and then, using the political equivalent of a vulcan mindlock, tricked everyone into going along.

The history of it all seems not nearly as clear as that. I gather EV has isolated many instances of suggestive language in Supreme Court cases, but their only direct ruling points, slightly, in the other direction. There is a lack of clarity going through the history right back to the text of the thing itself, which is badly written and arguably, unless you strip most of the commas out, is not a coherent sentence.

The interpretation that it protects well-regulated militias, in the context of what I gather are lots of circuit decisions along the same lines, is a perfectly arguable one and is anyway not a creation of modern liberals. I don't know enough about it to say it is right or wrong, but "cloud koo-koo land" it is not.

The characterization of this and other posts seems just as orwellian to me as the NYT article could be.
5.6.2007 2:47pm
Andrew Okun:
eforhan: when the book comes out, it will take a place of honor right next to my copy of "How Liberals Won the Cold War".

Lots of room on your shelf, doubtless, between copies of "Treason" and "Slander." It is OT, but the campaign to completely write liberals out of the cold war is one of the most grotesque exercises in Orwellianism in modern US politics. Note that nobody has written a book claiming liberals won the cold war, but a lot of people have written books claiming that liberals wanted the communists to win and that Reagan won the cold war single-handedly, which is a crock.
5.6.2007 2:54pm
Andrew Okun:
Re my last post, not sure Orwellianism is or should be a word. Make it Orwellian and put it before exercises.
5.6.2007 2:55pm
Bob_R (mail):
Writing "liberals" out of the cold war is far more an act of sloppy language than revisionism. Does anyone seriously argue that liberals like Truman, JFK, LBJ, and Scoop Jackson were not cold warriors? Is it too far from the truth to argue that the "New Left" completely rejected the cold was, and is now the face of liberalism?
5.6.2007 3:20pm
wuzzagrunt (mail):
It is OT, but the campaign to completely write liberals out of the cold war is one of the most grotesque exercises in Orwellianism in modern US politics.


Many of the liberals who had a hand in containing/defeating the Sovs would be considered Neo-Cons by today's standards--if not to the right of them. 40 years ago GW Bush would have felt at home in the Democrat party, and Hubert Humphrey would not be out of place in today's Republican party. There was a certain amount of sarcasm in my post--which I don't feel compelled to support with charts and graphs--but (IIRC) it was John Kerry who claimed 'We all stood together in fighting Communism' (or something equally nonsensical) when he and others did everything they could to derail US interests.

Most liberals are watching the debate on the 2nd Amendment leave them in the dust and a few want to take credit for leadership on the issue. Many more will be along shortly.

Regardless, people like professor Levinson are to be admired for such a strong committment to intellectual honesty. There's little enough of that to be found on either side of the aisle.
5.6.2007 3:37pm
David M. Nieporent (www):
Therut: the polls are problematic, but not for the reasons you state. The polls are problematic because they assume a baseline of knowledge that isn't there. For instance, polls regularly show that the public wants to cut foreign aid -- but then when the people who answer the question in that way are asked what percentage of the budget it should be, they give a number higher than what it is now.

So saying that one supports "stricter" gun control is meaningless unless one first establishes that one knows what current gun control laws exist.

Note that many of the answers are contradictory; 61% say "yes" even though in the same poll only 49% say that they think it would reduce gun violence. And when given a third option -- stricter enforcement of existing laws --support for stricter gun control laws drops to 38%.
5.6.2007 3:57pm
juris_imprudent (mail):
A.O.

The interpretation that it protects well-regulated militias, in the context of what I gather are lots of circuit decisions along the same lines

May I suggest this for your edification on what the lower courts have done. Not particularly faithful readings of the precedents (meager as they are).
5.6.2007 4:03pm
Bored Lawyer:

Writing "liberals" out of the cold war is far more an act of sloppy language than revisionism. Does anyone seriously argue that liberals like Truman, JFK, LBJ, and Scoop Jackson were not cold warriors? Is it too far from the truth to argue that the "New Left" completely rejected the cold was, and is now the face of liberalism?


Excellent.

How about the following:

The liberals were an honored part of the Cold War. The leftists undermined and opposed it.

The liberals dominated (though not exclusively -- there were exceptions) the Democratic party thinking on the issue until 1972. Thereafter, the leftists began to dominate and then dominated the party's views on foreign policies. (Again, there were exceptions in the other direction.) That domination -- not exclusive, see, e.g., Senator Lieberman, probably among the last of the classic "liberals" -- continues today.

Fair summation?
5.6.2007 5:26pm
Mark Field (mail):
Before this debate gets too far off into cloud cuckoo land, I'd like to return to the original topic.

It seems to me that there's an important feature of the embrace by at least some liberals of the individual rights theory. Prof. Amar, for example, adopts the individual rights view as a corollary to his incorporation theory of the 14th A. Conservatives vehemently resisted incorporation theory for, what, 50 years? Does the apparent agreement on gun rights mean that conservatives have dropped that opposition?
5.6.2007 6:10pm
wuzzagrunt (mail):
It seems to me that there's an important feature of the embrace by at least some liberals of the individual rights theory. Prof. Amar, for example, adopts the individual rights view as a corollary to his incorporation theory of the 14th A. Conservatives vehemently resisted incorporation theory for, what, 50 years?


I can't speak for all conservatives, but I have no quarrel with the 14th Amendment incoprporating the BoR as long as the entire Bill of Rights is incorporated, and as long as only the Bill of Rights is incorporated. That means the whole thing is applied to the states, not just the parts that a majority of SC justices like. That also means that emanations, penumbras, and emerging moral consensuses of the international community are not applied to the states (or to the federal government, for that matter). Also, stuff that the justices of the Supreme Court just made up is inelligible for incorporation. That's just me though, and I'm no legal scholar.
5.6.2007 6:58pm
Brett Bellmore:

as polling has consistently shown broad support for stricter gun control over the last decade,


And did I say anything about support for gun control? No, I said that the public understood the 2nd amendment to refer to an individual right, and that's what I meant. It's not the same thing. Heck, Tribe and Levinson both demonstrate that it's possible to understand that the 2nd amendment guarantees an individual right, AND to want that right violated.

But that polling is pretty much worthless, since the public being polled generally didn't know how strict gun control laws were already. Funny thing, that very public you say favors more gun control added a RKBA amendment to the Wisconsin constitution, routinely defeats gun control initiatives, and has created an electoral enviroment so hostile to gun control it's got the Democratic party running scared from the subject.

You might wonder whether there's something wonky about those polls.
5.6.2007 10:41pm
Brooks Lyman (mail):
Andrew Okun:

The text of the Second Amendment is fine by 18th Century grammar and syntax, and (to me, at least) means the same thing with or without the commas: that because we need a militia to defend the country, and because a militia consists of civilians mustering with their own arms (small-arms, at least), therefore the right of those individual citizens to keep and bear those personal arms shall not be infringed.

The founders recognized other uses for individual arms, such as self-defense, and while the targets of that self defense may have changed from marauding Indians and bandits to todays more domestic (but no less dangerous) criminals, the need for arms to defend oneself and one's family is probably as real and as common today as it was in the founder's day, if perhaps more individualized.

In any event, I trust that your research into the background of the Second Amendment has pointed up the fact that it (and the rest of the bill of rights, in varying degrees) does not grant a "right", but guarantees an existing right. Ultimately, that right comes from the right to life (see the Declaration of Independence) which is meaningless unless one has the right to defend one's life against those who would take it.
5.7.2007 12:21am
Andy Freeman (mail):
> Indeed, those numbers have consistently indicated those in favor of tighter gun control by at least 15% since 1990.

In at least one of those polls, the "tighter" restrictions were actually significantly looser than current restrictions.

When folks are asked about the details, the majority supports things that are pretty close to, or less than, current restrictions. The "tighter" result comes from ignorance; they think that the restrictions that they favor aren't current law. It's unclear that this translates into support for tighter restrictions.

BTW - Huge majorities happen to support things like official prayer in school, things which actually are banned. If the "tighter" result is persuasive, why shouldn't they get their way on other issues?

Right - guns are special.
5.7.2007 11:51am
TDPerkins (mail):
wuzzagrunt deserves a counterpoint if lefty out there can gainsay him, which I doubt:

I have no quarrel with the 14th Amendment incoprporating the BoR as long as the entire Bill of Rights is incorporated, and as long as only the Bill of Rights is incorporated. That means the whole thing is applied to the states, not just the parts that a majority of SC justices like. That also means that emanations, penumbras, and emerging moral consensuses of the international community are not applied to the states (or to the federal government, for that matter). Also, stuff that the justices of the Supreme Court just made up is inelligible for incorporation. That's just me though, and I'm no legal scholar.


Yours, TDP, ml, msl, &pfpp
5.8.2007 10:40pm