NY Times on even liberal law school professors saying that there is an individual right to own a gun contained in the Second Amendment

This news article has multiple problems and I already knew most of this, but it is still quite useful that the NY Times is even making this point.

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. . . .

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. . . .

Don Kates notes:

From the article the ordinary reader would come away with the following impression: 1) from its enactment in 1791 to roughly 1980 everyone viewed the 2nd Am. as a states right (or a meaningless "collective right"); 2) since c. 1980 a few ivory tower intellectuals have theorized that the 2nd Am. might be a right of individual gun owners; 3) nonetheless the great majority of authorities say that is wrong.

The truth is almost diametrically opposite:

1) From its enactment till the outset of the 20th Century gun control movement there was no controversy over the 2nd Am. – not one court or commentator denied that it was a right of individual gun owners. 18th and 19th Century judges and commentators routinely described it as a right of individual gun owners and expressly analogized it to the rights of freedom of speech, religion, jury trial etc., etc.

2) The states’ right and collective rights theories are inventions of the 20th Century gun control movement having no historical constitutional provenance whatever. Far from the 2d Am being a states’ right, 200 years of Supreme Court cases on the militia hold that the federal government has plenary power over it with state authority being limited to issues on which Congress has not spoken.

3) Over 120 law review articles have addressed the Second Amendment since 1980. The overwhelming majority affirm that it guarantees a right of individual gun owners. That is why the individual right view is called the "standard model" view of the 2d Am by supporters and opponents alike. With virtually no exceptions, the few articles to the contrary have been written by gun control advocates, mostly by people in the pay of the anti-gun lobby. In contrast, a very substantial proportion of the standard model articles are written by scholars who ruefully admit that they support gun control but must honestly admit that the evidence is overwhelming that the 2d Am precludes banning guns to the general population.

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Blogger Kris said...

So many bad ideas gained traction in the 20th century. Historians won't know what to think.

"They invented computers, spacecraft, and amazing medicines but they also thought the world would end every other Friday from global warming, aliens were flying around abducting people, and, oh yeah, socialism. Thanks for that one, guys."

5/07/2007 9:21 AM  

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