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."
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