I wrote briefly recently about the Second Amendment, a post that prompted a spirited and articulate discussion. An article in yesterday’s New York Times provides fodder to continue that discussion. Written by Adam Liptak and titled A Liberal Case for Gun Rights Sways Judiciary, the article discusses what for liberals amounts to embracing the dark side–the individual rights view of the Second Amendment. There are two approaches to reading the Second Amendment, which reads “[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.” The collectivist view, long embraced by liberal legal scholars, holds that the Second Amendment protects the right of states to maintain militias. The individual rights view championed by the National Rifle Association and other pro-gun (or anti-government) groups holds that the Second Amendment protects the right of individuals to own guns. What is new is that some influential liberal legal scholars–the Times article mentions Larry Tribe, Akhil Reed Amar, and Sanford Levinson–have embraced the individual rights view. In Levinson’s words “[t]he standard liberal position is that the Second Amendment is basically just read out of the Constitution.” Paraphrasing Levinson the article states “If only as a matter of consistency . . . 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.” Law professor Carl Bogus criticizes this liberal apostasy as intellectually dishonest: “[c]ontrarian positions get play . . . Liberal professors supporting gun control draw yawns.”
I have no position on Second Amendment scholarship to throw into the ring. My interest is moved largely by the uncertainty in the law. My blog post and the discussion following generated a number of questions about why, at this point in our history, Second Amendment jurisprudence is so muddled. The lack of a clarifying Supreme Court ruling as to whether the collectivist or individual rights position embraces the controlling view is noteworthy. The Times article notes that the “Court has not decided a Second Amendment case since 1939,” a “somewhat cryptic” ruling cited since 1939 by both collectivists and individual-right-ists to support their interpretation. It is a curious state of affairs. The Second Amendment is the black sheep of the Bill of Rights, the provision over which liberals and conservatives execute a do-si-do and change their partners.
The case that brought this doctrinal switcheroo to the fore is Parker v District of Columbia, a March 9, 2007 decision of the the United States Court of Appeals for the District of Columbia Circuit (478 F.3d 380) striking down a District law that banned residents from keeping handguns in their homes as a violation of the Second Amendment:
To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.