Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“A democracy is two wolves and a small lamb voting on what to have for dinner. Freedom under a constitutional republic is a well armed lamb contesting the vote.”     Benjamin Franklin

May 7, 2007

How Liberal Law Professors Saved The Second Amendment

by Doug Mataconis

The New York Times has an interesting article about how a shift in views on the Second Amendment by leading law professors normally associated with the left led to the case that could transform the debate over gun control:

In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.

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.

The article goes on the profile two legal scholars, Laurence Tribe from Harvard and Sanford Levinson from the University of Texas, who have abandoned their previous view that the Second Amendment protects only a “collective” right:

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.

And it was this shift in consensus that led to cases such as Parker v. District of Columbia:

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.”

In other words, ideas have consequences.

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1 Comment

  1. Now, if only we could salvage the 5th, 9th, and 10th Amendments and Article II of the Constitution (which, despite Administration lawyers’ claims, does not give the President the authority to ignore law passed by the Congress and signed by the President himself.)

    Comment by Jesse — May 7, 2007 @ 12:47 pm

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