Gun Nuts Like Lawrence Tribe


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.]