Gun Nuts Like Lawrence Tribe

Jacob Sullum | May 7, 2007

Startled by the recent federal appeals court decision overturning D.C.'s gun ban, The New York Times suddenly notices the impact of scholarship favoring the position that the Second Amendment protects an individual right to arms. It notes that the work of left-liberal legal scholars inclined to favor gun control, beginning with University of Texas law professor Sanford Levinson's 1989 Yale Law Journal article "The Embarrassing Second Amendment," has been especially influential. Why, after all, would leading scholars such as Lawrence Tribe reverse themselves and endorse a view of the Constitution at odds with their policy preferences unless the evidence supporting that view was too strong to ignore? Just to be contrary, according to the nicely named Carl T. Bogus, a law professor at Roger Williams University who favors an interpretation of the Second Amendment that renders it null and void. "Contrarian positions get play," he says. "Liberal professors supporting gun control draw yawns."

The Times reports that these contrarians have "in a remarkably short time upended the conventional understanding of the Second Amendment"—so much so that (as the Times fails to note) the individual-right interpretation is now known as "the standard model." Yet the Times leaves unquestioned this claim by Dennis Henigan of the Brady Center to Prevent Gun Violence: "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. The exceptions attract attention precisely because they are so rare and unexpected." It's not clear how Henigan is weighing scholarly opinion, but the pro-gun-rights scholar Don Kates reports that "over 120 law review articles have addressed the Second Amendment since 1980," and "the overwhelming majority affirm that it guarantees a right of individual gun owners." Furthermore, as the Times also neglects to mention, this was the standard view until 20th-century gun controllers started pushing the claim that the Second Amendment has nothing to do with individual rights.

Mike McMenamin reviewed Bogus' defense of plaintiff's attorneys for Reason a few years ago. Did Bogus really believe what he wrote in that book, or was he just trying to be provocative?

[Thanks to Don Kates for the link.]

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Dave W.|5.7.07 @ 12:14PM|#

Linking it to "militias" is a historical artefact, and the type of interpretational constraint that Living Constitution advocates don't support generally. It is nice to see they are consistent in not supporting it for the Second Amendment either. Nice intellectual consistency we should appreciate, even those of us coming from the Strict Construction side.

Nevertheless, the word "well-regulated" is still in there, and I don't think getting rid of the militias, as we pretty much have, means that we should get rid of the "well-regulated" requirement. Being a proponent of a Living Constitution doesn't mean that you have to make an effort to expunge by interpretation every word the Framers chose to include.

|5.7.07 @ 12:16PM|#

This story was in Sunday's Boston Globe, too.

|5.7.07 @ 12:25PM|#

From the article:

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."

Uhh, Linda, I think you mean "has" not "had". You don't have anywhere to go back to. You're there. And your precious gun ban didn't do anything to improve that, although its death in the courts might.

|5.7.07 @ 12:27PM|#

Uh, no, she means "had," as DC hasn't had the highest murder rate in years.

|5.7.07 @ 12:28PM|#

Let's see what the feds do when you and fifty of your friends start buying rocket launchers in order to exercise your right to form a militia.

|5.7.07 @ 12:29PM|#

Yes, but she implies that DC had the highest murder rate before instituting these laws. I don't have the statistics handy, but I'd be curious to see the general violent crime rate in DC with markers indicating in which years DC tightened their gun bans.

LarryA|5.7.07 @ 12:32PM|#

beginning with University of Texas law professor Sanford Levinson's 1989 Yale Law Journal article "The Embarrassing Second Amendment,"

1989? For the Times this is "breaking news?"

The Times reports that these contrarians have "in a remarkably short time upended the conventional understanding of the Second Amendment"

2007-1989=18 years. At least a couple of news cycles.

Yet the Times leaves unquestioned this claim by Dennis Henigan of the Brady Center to Prevent Gun Violence: "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. The exceptions attract attention precisely because they are so rare and unexpected."

Sort of a self-defeating quote. Actually, the "exceptions" are "rare and unexpected" because, at least for media like the Times, they so seldom "attract attention."

The Brady Center, however, gets regularly quoted, always without any questioning of their pronouncements.

|5.7.07 @ 12:36PM|#

"Uh, no, she means "had," as DC hasn't had the highest murder rate in years."

It's usually pretty damn close to the top of the list. Just because some other cities have gone in the toilet doesn't mean that DC is now a crime-free paradise.

|5.7.07 @ 12:37PM|#

I'm wary of any conclusion based on the incidence of law review articles. As poor Mr. Bogus points out, the system is biased toward contrarian views.

Still, my gut sense is that there has been a trend toward greater acceptance of the "plain-meaning" interpretation of the 2d Amendment. 9/11 probably had something to do with it in an unconscious way. I think blogs have also helped (especially Volokh Conspiracy).

And for those joining us late, here are the four stages of acceptance of a new idea:

i) this is worthless nonsense;
ii) this is an interesting, but perverse, point of view;
iii) this is true, but quite unimportant;
iv) I always said so.

(J.B.S. Haldane, Journal of Genetics #58, 1963, p. 464.)

|5.7.07 @ 12:42PM|#

Lemme get this straight: these law professors are getting "contrarian" street cred for supporting the "standard model"?

We all remember very well when D.C. had the highest murder rate in the country, and we won't go back there."

Well, now I'm confused. D.C. had the highest murder rates when it also had the most restrictive gun laws in the country, so is she saying that D.C. won't got back to having restrictive gun laws?

|5.7.07 @ 12:49PM|#

In somewhat related, but hilarious news Carolyn McCarthy ~~has trouble explaining~~ doesn't even know what one of the features of a gun that makes it an "assault weapon."

(Link goes to YouTube vid.)

Kinda sucks when you get caught being completely ignorant of the meaning of legislation that you wrote.

|5.7.07 @ 12:50PM|#

|5.7.07 @ 12:52PM|#

Uh, no, she means "had," as DC hasn't had the highest murder rate in years.

It can't have been for "years". They were definitely #1 in 2004 and 2005. Admittedly, I haven't seen the 2006 rates yet, so it could have been for "a year". Maybe you can whip up those stats for us, since you obviously know all about this.

|5.7.07 @ 12:53PM|#

Their work has in a remarkably short time upended the conventional understanding of the Second Amendment

A careful reading of the Constitution, being necessary to understand the meaning of the framers, the right of the people to keep and bear arms, has always been the purpose of the Second Amendment.

|5.7.07 @ 1:06PM|#

mediageek,

I have no idea who that interviewer is, but he really got after her. He absolutely refused to let her dodge the question. If we had more like that guy, I might pay attention to MSM a bit more. Where was that guy when the PATRIOT ACT was up to be passed?

Also, nice job on the strikethough inside the link (two trys, whatev). Them's some 1337 html skills.

|5.7.07 @ 1:14PM|#

*,

Your stats are bogus, because they go by state, not by city.

DC hasn't had the highest murder rate in years, if you compare it to other cities.

|5.7.07 @ 1:19PM|#

Though DC remains scary. I'm rather dubious about DC, LA, NYC, Chicago, etc., which all seem to drastically under report their actual violent crime statistics. Though proving that one way or the other is problematic, of course.

Ramsey|5.7.07 @ 1:19PM|#

Don't get too depressed joe, they are still in the top five, see http://en.wikipedia.org/wiki/United_States_cities_by_crime_rate

With just a little effort, they can make it back to the top!

|5.7.07 @ 1:28PM|#

The interviewer is Tucker Carlson.

|5.7.07 @ 2:06PM|#

Don't get too depressed joe, they are still in the top five

Only for big cities. No list is complete without Gary and Compton.

|5.7.07 @ 2:48PM|#

"Also, nice job on the strikethough inside the link (two trys, whatev). Them's some 1337 html skills."

~~My html skillzzz rul3 ALL.~~

|5.7.07 @ 2:50PM|#

"DC hasn't had the highest murder rate in years, if you compare it to other cities."

Joe, do you know if those stats predate DC's tightening of gun laws or not?

|5.7.07 @ 2:58PM|#

When Reason first referenced something published by Prof. Bogus I assumed it was a parody, maybe an unsubtle April Fool's joke if it was published in the springtime, Was it?

|5.7.07 @ 3:00PM|#

mediageek,

I only know back to the early 90s.

IIRC, DC started to jack up its gun control laws in response to rising crime rates in the 1970s. That's how gun control rose to prominence nation-wide - as a reaction to rising crime.

|5.7.07 @ 3:21PM|#

That's how gun control rose to prominence nation-wide - as a reaction to rising crime.

Interestingly enough no jurisdiction that has ever enacted or increased gun control as a reaction to rising crime has seen a reduction in crime as a result.

kap|5.7.07 @ 3:41PM|#

Nevertheless, the word "well-regulated" is still in there...

Meaning in this context "well practiced" or "skilled". I.e. the American citizenry should be well-practiced with arms, the better to be useful to the militia, which is composed of all male adult citizenry.

|5.7.07 @ 3:48PM|#

Isaac B,

"...as a result."

Nice wiggle room. I actually tend to agree with you policy-wise, but I know how to prepare a fallback position, too.

Nicely done.

|5.7.07 @ 4:00PM|#

If one enacts gun control as a way to reduce crime, and the result is NOT a reduction in crime, how is that wiggle room?

After all, the gun-grabbers continually tell us that the result of stricter gun control will be a reduction in crime, no?

|5.7.07 @ 4:08PM|#

mediageek, c'mon, you know the drill. The claim is "crime would have been even higher if we hadn't taken away your rights."

This is, of course, non-falsifiable, and thus is an article of faith.

|5.7.07 @ 4:12PM|#

joe

It was not intended as "wiggle room". In fact I suppose you could say my statement stands without it. So reread it and omit "...as a result."

Connections between crime levels and gun ownership (and ease of gun ownership) are slippery at best so I try not to invoke them except as generalities.

|5.7.07 @ 4:14PM|#

Well, crime did decline, but I would assume most people around here know that the main factor in crime rates going up or down are changing economic fortunes. The economy was in the dump in the late 1970s, crime was on the rise. As things improved in the 1980s, crime declined. We had that little hiccup during the Bush 41 administration, crime went up again, and now, it's all gravy.

|5.7.07 @ 4:37PM|#

mediageek,

One could easily find examples of crime falling after the passage of a gun control bill. In the early-to-mid 90s, Massachusetts passed an "assault weapons" ban, the details of which I don't know. And we all know what happened to murder rates.

So you can see why "...as a result" was appended onto Isaac's statement.

|5.7.07 @ 6:15PM|#

"One could easily find examples of crime falling after the passage of a gun control bill. In the early-to-mid 90s, Massachusetts passed an "assault weapons" ban, the details of which I don't know. And we all know what happened to murder rates."

You say this, but I have a hard time buying it. As has already been pointed out, other economic factors have a much bigger effect on the crime rate than prohibiting rich people from buying rifles with price tags in the low four-figure range.

|5.7.07 @ 6:26PM|#

Besides, given the topic that the NYT is talking about (namely that the 2nd Amendment is indeed an individual right) is it well and truly right to infringe on the civil liberties of citizens without any sort of true due process?

Nobody Important|5.7.07 @ 8:46PM|#

If anyone's interested in reading many of the scholarly articles in question, they can be found at "The Second Amendment Law Library," mostly by clicking on the Law Reviews link.

The Journal of Firearms and Public Policy, while not dealing strictly with constitutional issues, is another good reference.

|5.7.07 @ 9:10PM|#

joe sez "That's how gun control rose to prominence nation-wide - as a reaction to rising crime."

Not entirely true joe. California banned open carry after the Black Panthers scared the piss out of the white establishment. Just like the gun control of the Jim Crow era.

|5.7.07 @ 9:14PM|#

joe sez "One could easily find examples of crime falling after the passage of a gun control bill."

OK joe, go for it.

Or just slink away with your tail between your legs... again.

Nobody Important|5.7.07 @ 9:19PM|#

joe | May 7, 2007, 4:37pm
One could easily find examples of crime falling after the passage of a gun control bill. In the early-to-mid 90s, Massachusetts passed an "assault weapons" ban, the details of which I don't know. And we all know what happened to murder rates.

Since we don't "all know what happened to murder rates," could you please explain how the passage of the assault weapons ban affected murder rates?

According to the Boston Globe (June 24, 2004), Massachusetts passed an "assault weapons" ban in 1998 and in 2004. Nuking them from orbit, even though it's the only way to be sure, wasn't an option.

-----------------------------
Murder rate for Massachusetts,
according to http://www.disastercenter.com/crime/macrime.htm

1985: 3.5 murders per 100,000 inhabitants (Gorbachev becomes leader of USSR)
1986: 3.6 murders per 100,000 inhabitants (Clint Eastwood elected mayor of Carmel, CA)
1987: 3.0 murders per 100,000 inhabitants
1988: 3.5 murders per 100,000 inhabitants
1989: 4.3 murders per 100,000 inhabitants (Berlin Wall comes down)
1990: 4.0 murders per 100,000 inhabitants
1991: 4.2 murders per 100,000 inhabitants (Operation Desert Storm)
1992: 3.6 murders per 100,000 inhabitants (Clinton elected)
1993: 3.9 murders per 100,000 inhabitants
1994: 3.5 murders per 100,000 inhabitants (federal Brady Bill and assault weapons ban)
1995: 3.6 murders per 100,000 inhabitants (Republicans seize control of Congress, OKC bombing)
1996: 2.6 murders per 100,000 inhabitants (Clinton re-elected)
1997: 1.9 murders per 100,000 inhabitants (comet Hale-Boppe)
1998: 2.0 murders per 100,000 inhabitants (Clinton impeached by House)
1999: 2.0 murders per 100,000 inhabitants (Clinton acquitted by Senate)
2000: 2.0 murders per 100,000 inhabitants (Bush seizes presidency)
2001: 2.2 murders per 100,000 inhabitants (Enron begins crooked accounting, 9/11)
2002: 2.7 murders per 100,000 inhabitants
2003: 2.2 murders per 100,000 inhabitants (Operation Iraqi Liberation)
2004: 2.6 murders per 100,000 inhabitants (Bush elected)
2005: 2.7 murders per 100,000 inhabitants

Nadine Strossen|5.7.07 @ 9:41PM|#

I don't want to dwell on constitutional analysis, because our view has never been that civil liberties are necessarily coextensive with constitutional rights. Conversely, I guess the fact that something is mentioned in the Constitution doesn't necessarily mean that it is a fundamental civil liberty.

thoreau|5.7.07 @ 10:33PM|#

other economic factors have a much bigger effect on the crime rate than prohibiting rich people from buying rifles with price tags in the low four-figure range.

When I go to the range (not a lot, lately) I find that the guys with scary-looking rifles tend to drive nice cars.

|5.8.07 @ 1:59AM|#

Your stats are bogus, because they go by state, not by city.

So the fact that I knew what I was talking about, and you did not, means the stats are bogus? As noted by other commenters, D.C. is still up there, even going by city.

Still, I have to give D.C. a little credit, last I checked the per city stats they were 2nd only to New Orleans, now they are 4th in the nation. Good for them. That totally changes my mind on the whole "denying their citizens civil liberties" thing.

|5.8.07 @ 2:36AM|#

Although, I do bear the blame for not linking the stats that I was basing my assertion on in the original post. My bad.

Nobody Important|5.8.07 @ 8:24AM|#

For an easy-to-read graph that shows the correlation between gun control and crime rates by state, go here and scroll down.

Since a picture is worth a thousand words, here's the two graphs from his study, plotting Brady Grades vs. crime rates:

[graph]

Those of you with an intense interest in statistics may want to know that I also did a regression analysis on the data just to verify the tale of the graphs. The correlation between your state's Brady grade, and its actual murder or violent crime rate is absolutely no better than you would get if you ran pairs of random numbers through the analysis.

In short, your chances of being killed, raped, or assaulted are, on average, no better, and no worse, in states that got the coveted Brady A or A-, than they are in states that got a D or an F. If the laws the Brady Campaign favors were very successful in combating violence, you could not possibly get this result.

-Denton Bramwell.
"State Got a Poor 'Brady Gun Grade'? Don't Rush to Pack Your Bags."

And this guy has a chart comparing the Brady grades to crime rates for the New England states.

State _ Crime Rate _ National Ranking _ Brady Grade (2004)

MA _ 458.8 _ #18 _ A-

CT _ 286.3 _ #34 _ A-

RI _ 247.4 _ #40 _ B-

NH _ 167.0 _ #47 _ D-

VT _ 112.0 _ #48 _ D-

ME _ 110.2 _ #49 _ D-

New Hampshire, Vermont, and Maine -- all of which received near failing grades from the Brady Campaign -- have very low crime rates, ranking #47, #48, and #49 respectively.

|5.8.07 @ 9:41AM|#

mediageek,

You misunderstand me. I didn't provide the Massachusetts example to demonstrate that the bill lowered violent crime, just to point out that evidence of a correlation can be found - hence, the need to put "...as a result" on the end of Isaac's statement.

Because, without that appendage, Isaac's statement becomes the easily-disproven, "Interestingly enough no jurisdiction that has ever enacted or increased gun control as a reaction to rising crime has seen a reduction in crime."

|5.8.07 @ 9:43AM|#

juriis,

"OK joe, go for it."

Just did.

Neener neener nee-ner.

|5.8.07 @ 9:45AM|#

"So the fact that I knew what I was talking about, and you did not, means the stats are bogus?"

No, the fact that you were comparing apples to oranges makes your stats bogus.

|5.8.07 @ 9:49AM|#

Damn, this topic really brings out the nastiness in some people.

|5.8.07 @ 11:40AM|#

joe

If Nobody Important's info is correct the the murder rate in Mass either remained static or showed a small uptick after the '04 bill. That hardly disproves my statement.

If you are cautioning people to be wary of using crime stats in the case against gun control that's fine. But it's also true that it's even more hazardous to try to use them in a case for.

And almost all topics really bring out the nastiness in some people. Especially people who are having their rights violated.

|5.8.07 @ 12:20PM|#

Isaac,

There was a storm of gun control bills in Massachusetts in the late 80s and early 90s, including some sort of "assault weapons" bill. That was what I was referring to, not the 2004 bill.

"If you are cautioning people to be wary of using crime stats in the case against gun control that's fine. But it's also true that it's even more hazardous to try to use them in a case for." Both are hazardous, as the data are all over the place. Gun control laws just don't seem to have a reliable, measureable effect.

"And almost all topics really bring out the nastiness in some people. Especially people who are having their rights violated."

"...who feel that they are having their rights violated." Every political topic involves some group who feel just as wounded about the violation to their rights as characters like *, above. Adults with the ability to function in society manage to discuss them in a reasonably civil manner anyway.

|5.8.07 @ 12:22PM|#

"Because, without that appendage, Isaac's statement becomes the easily-disproven, "Interestingly enough no jurisdiction that has ever enacted or increased gun control as a reaction to rising crime has seen a reduction in crime."

If it's easily disproven, then why aren't you easily disproving it?

|5.8.07 @ 12:31PM|#

""...who feel that they are having their rights violated." Every political topic involves some group who feel just as wounded about the violation to their rights as characters like *, above."

Joe, pointing out that a party who's rights are being violated "feel wounded" doesn't change the fact that their rights are, indeed, being quite blatantly violated.

mediageek, I'll use short words for you.

Gun control laws were passed in the late 80s and early 90s. For example, the "assault weapons ban" in the Clinton-era crime bill.

Crime went down in the following years.

Can you follow that? Gun control laws passed. Then, crime goes down. Ergo, Isaac's statement that no jurisdiction has ever seen crime go down after passing a gun control bill is false.

I can't really make it any simpler. If you don't get it this time, you're on your own.

|5.8.07 @ 12:33PM|#

"Joe, pointing out that a party who's rights are being violated "feel wounded" doesn't change the fact that their rights are, indeed, being quite blatantly violated."

crimethink, pointing out that you agree with some group when they complain about their rights being violated doesn't grant them a "Get Out of Being Called an Asshole When You Act Like an Asshole" card.

|5.8.07 @ 12:45PM|#

"Can you follow that? Gun control laws passed. Then, crime goes down. Ergo, Isaac's statement that no jurisdiction has ever seen crime go down after passing a gun control bill is false."

As pointed out earlier, though, its a tenuous connection, at best, to claim that crime went down as a result of these gun control laws.

Which is where my disconnect occurs. But perhaps there were a bunch of bayonet-related crimes that I missed prior to that ban?

|5.8.07 @ 1:08PM|#

"As pointed out earlier, though, its a tenuous connection, at best, to claim that crime went down as a result of these gun control laws."

Yes, it certainly is tenuous. AFAICT, every claim about gun control laws influencing crime rates, one way or the other, is pretty tenuous.

Which is why smart people like Isaac follow up the statement "no jurisdiction that has ever enacted or increased gun control as a reaction to rising crime has seen a reduction in crime," with the phrase, "as a result."

There most certainly are jurisdictions, such as the USA in the 90s, that has enacted and increased gun control as a reaction to rising crime and seen a reduction in crime. There are also counter-examples. There is evidence pointing in every direction.

|5.8.07 @ 8:33PM|#

joe, MA murder rates 1960-2005. So where is this dramatic impact of gun control laws from the late 80's, 90's or 2004? You wouldn't be exhibiting your ignorance of history again would you?

Hint: any "assault weapons" law would be pretty unlikely to have a significant impact on murder (or other crimes) due to the infrequent use of such in crimes.

|5.8.07 @ 8:37PM|#

Oh, and joe. The federal AW ban came in 93 (effective 1/1/94) but the federal murder rate peaked in '80. Even the spike of '91 was already down-trending.

Boy, those gun control laws just work wonders!

anonymous coward|5.9.07 @ 9:19AM|#

Damn, this topic really brings out the nastiness in some people.

Who are you referring to?

Or is playing the "meanness" card just a cheap debating tactic to distract everyone?

|5.9.07 @ 12:42PM|#

"Yes, it certainly is tenuous. AFAICT, every claim about gun control laws influencing crime rates, one way or the other, is pretty tenuous."

Then perhaps you'd care to explain that to the people who think I should be prohibited from buying a sound suppressor.

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