Orlando Shooting

Of Course the Second Amendment Protects an Individual Right

Correcting the record about guns and the Constitution.


Ratha Grimes / Foter.com

Does the Second Amendment to the U.S. Constitution protect an individual right to keep and bear arms? Not according to liberal pundit Dahlia Lithwick. Writing at Slate, Lithwick says it is "a hoax," "a lie," "a falsehood" to claim that the Second Amendment protects an individual right. But thanks to the vile propaganda peddled by "exceptionally well-organized, well-funded interest groups," she complains, "the NRA's view of the Second Amendment became the law of the land."

What a tidy little narrative. Evil conservatives have hoodwinked a gullible nation! The problem with Lithwick's account is that it ignores the inconvenient fact that serious legal scholars from across the political spectrum have endorsed the individual rights interpretation of the Second Amendment. What Lithwick dismisses as "the NRA's view" is in reality a well-established and well-respected constitutional position that has found adherents in the highest reaches of the ivory tower. It's not a hoax, it's not a lie, and it's not a falsehood to understand the Second Amendment as a constitutional provision that secures individual rights.

But don't take my word for it. Let's hear from some liberal academics who helped to build the scholarly foundation on which the Supreme Court's 2008 decision in District of Columbia v. Heller was built. As I noted in my recent book Overruled:

For much of the twentieth century, the collective-right view [of the Second Amendment] proved dominant in elite legal circles. But that began to change in the last thirty years, first as conservative and libertarian legal scholars began researching more deeply into the amendment's text and history, and then as prominent liberal academics followed suit. A major turning point occurred in 1989 when University of Texas law professor Sanford Levinson, a leading liberal scholar, published an essay in the prestigious Yale Law Journal titled "The Embarrassing Second Amendment." The embarrassment, Levinson argued, came from the legal left's refusal to take the Second Amendment seriously. "I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar," he wrote, "is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, and perhaps even 'winning' interpretations would present real hurdles to those of us supporting prohibitory regulation."

Eleven years later, Harvard law professor Laurence Tribe, a respected scholar and teacher whose former students include a young Barack Obama, amended the new third addition of his legal treatise American Constitutional Law to officially endorse the individual-right interpretation of the Second Amendment. This was a marked change from the two previous editions, where Tribe had accepted the collective-right view. "My conclusion came as something of a surprise to me, and an unwelcome surprise," Tribe admitted to the New York Times after the third edition came out. "I have always supported as a matter of policy very comprehensive gun control."

Related: No, Justice Stevens, We Don't Need to "Fix" the Second Amendment