New York Times Article

[Sig]

Not sure if any of you caught this article. First is the NYT article and then follows commentary from the NRA on the same

 

A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary

By ADAM LIPTAK

Published: May 7, 2007

 

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.

 

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.

 

The earlier consensus, the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”

 

The Second Amendment says, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Some transcriptions of the amendment omit the last comma.)

 

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.

 

The individual rights view is far from universally accepted. “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,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”

 

Scholars who agree with gun opponents and support the collective rights view say the professors on the other side may have been motivated more by a desire to be provocative than by simple intellectual honesty.

 

“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”

 

If the full United States Court of Appeals for the District of Columbia Circuit does not step in and reverse the 2-to-1 panel decision striking down a law that forbids residents to keep handguns in their homes, the question of the meaning of the Second Amendment is almost certainly headed to the Supreme Court. The answer there is far from certain.

 

That too is a change. In 1992, Warren E. Burger, a former chief justice of the United States appointed by President Richard M. Nixon, expressed the prevailing view.

 

“The Second Amendment doesn’t guarantee the right to have firearms at all,” Mr. Burger said in a speech. In a 1991 interview, Mr. Burger called the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.”

 

Even as he spoke, though, the ground was shifting underneath him. In 1989, in what most authorities say was the beginning of the modern era of mainstream Second Amendment scholarship, Professor Levinson published an article in The Yale Law Journal called “The Embarrassing Second Amendment.”

 

“The Levinson piece was very much a turning point,” said Mr. Henigan of the Brady Center. “He was a well-respected scholar, and he was associated with a liberal point of view politically.”

 

In an interview, Professor Levinson described himself as “an A.C.L.U.-type who has not ever even thought of owning a gun.”

 

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.

 

Filing suit in the District of Columbia was a conscious decision, too, Mr. Levy said. The gun law there is one of the most restrictive in the nation, and questions about the applicability of the Second Amendment to state laws were avoided because the district is governed by federal law.

 

“We wanted to proceed very much like the N.A.A.C.P.,” Mr. Levy said, referring to that group’s methodical litigation strategy intended to do away with segregated schools.

 

Professor Bogus, a supporter of the collective rights view, said the Parker decision represented a milestone in that strategy. “This is the story of an enormously successful and dogged campaign to change the conventional view of the right to bear arms,” he said.

 

The text of the amendment is not a model of clarity, and arguments over its meaning tend to be concerned with whether the first part of the sentence limits the second. The history of its drafting and contemporary meaning provide support for both sides as well.

 

The Supreme Court has not decided a Second Amendment case since 1939. That ruling was, as Judge Stephen Reinhardt, a liberal judge on the federal appeals court in San Francisco acknowledged in 2002, “somewhat cryptic,” again allowing both sides to argue that Supreme Court precedent aided their interpretation of the amendment.

 

Still, nine federal appeals courts around the nation have adopted the collective rights view, opposing the notion that the amendment protects individual gun rights. The only exceptions are the Fifth Circuit, in New Orleans, and the District of Columbia Circuit. The Second Circuit, in New York, has not addressed the question.

 

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.”

 

The decision in Parker has been stayed while the full appeals court decides whether to rehear the case.

 

Should the case reach the Supreme Court, Professor Tribe said, “there’s a really quite decent chance that it will be affirmed.”

 

Saturday, May 12, 2007

A Liberal Interpretation

 

The New York Times says "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," but that over the past twenty years, a group of liberal legal scholars has reversed that consensus.

 

What the Times doesn't tell you is that it's not just some random group of law professors. The names Tribe, Amar and Levinson are the biggest names in constitutional law scholarship.

 

Of course, the anti-gunners want you to believe that they're the exception instead of the norm. In the Times article, Dennis Henigan of the Brady Campaign says, "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." That's a bunch of baloney.

 

According to Second Amendment scholar Don Kates, 120 law review articles on the Second Amendment have been published since 1980. The overwhelming majority reflect the opinion that the Second Amendment protects an individual right. Most of the articles advocating a “collective rights” view have been financed by anti-gun groups like the Joyce Foundation.

 

The truth is that most serious legal scholars now recognize the individual right to keep and bear arms. With scholarship on our side, the court battles won't be a slam-dunk for the gun-banners, and that scares them to death.

 

But this is more than an intellectual exercise. When D.C. Attorney General Linda Singer said, "It's truly a life-or-death question," she was right. But Singer is on the wrong side, believing that bringing the Second Amendment back to D.C. would cause homicides to rise.

 

Singer said, "We all remember when D.C. had the highest murder rate in the country, and we won't go back there." What she doesn't tell you is that D.C.'s gun ban was in full effect when it had the highest murder rate in the land. The Second Amendment didn't cause D.C.'s crime problem, and it won't fix it, either.

 

But it will give the residents of D.C. the ability to protect themselves in their home against the thugs out on the street. How on earth could anybody, liberal or conservative, be opposed to that? Most legal scholars aren't.

[Mohawk]

The crazy thing about all these "odd" interpretations is the Militia part. The Second amendment IMO is written in very simple English & does not require interpretation, which is what these scholars appear to have noted. There are many modern interpretations of what a Militia is, but way back when the laws were written, it was simply a local army formed by the local populace who were expected to provide their own equipment, with the number one tool being a gun. Switzerland has this kind of Militia today, but the difference is that all men are trained in the regular army & then given a gun + ammo to take home to keep & to practice with in case they are required to form a militia to back up the regular army or if the political situation warranted it to oppose the regular army.

 

The National Guard in the USA is NOT a Militia, they are a full time reserve force of the regular army, they are commanded by the regular army & it would be very hard to imagine them opposing the regular army in support of the people. The members of the National Guard, do not get to choose sides, they do not get to oppose government opinion & they definately don't get free access to their guns or other equipment which is kept under strict regular army control ! So definitely not a Militia, thus I'm not sure what the states consider to be their "collective" group that forms their Militia ????

 

 

 

[Waffen Und Bier]

I recently wrote a paper on it being an individual right. My philosophy professor told me that the paper was great and that I should publish an article. I believe that should settle the matter once and for all. http://www.machinegunbooks.com/forums/invboard1_1_2/upload/html/emoticons/soapbox.gif http://www.machinegunbooks.com/forums/invboard1_1_2/upload/html/emoticons/iagree.gif Thank you. Thank you very much.

[Mike Hammer]

For those people that don't believe an individual has the right to keep and bear arms and for those of you that would like to read more on the subject please pick up a copy of "The Second Amendment Primer" by Les Adams. Adams is a lawyer who put together a fine little book that researched English and early American historical literature and other published material relating to the Second Amendment and if you read what he has compiled you will have no doubt whatsoever the meaning and intent of the authors of the Bill of Rights and the Second Amendment. This should be required reading not only for every politician but every citizen as well. http://www.machinegunbooks.com/forums/invboard1_1_2/upload/html/emoticons/woot.gif

 

Mike Hammer

[Bruce V 21/28]

This whole thing is made easier to understand if people just remember that the first Ten Amendments are RESTRICTIONS ON GOVERNMENT.

[Bruce V 21/28]

Thanks for your comment Phil. I wish we could get more people to understand what the first Ten Amendments actually are. Most people I speak with think that the First Ten Amendments "give" them certain rights. I think if "the people" really understood that they are limitations on the governments power and authority we would have an easier time with our Second Amendment cause. When I talk with the average person who has been educated in our educational system over the last 40 years, most of them have no idea that the "First Ten" don't give them anything. It may seem like a minor point to many, perhaps even some on this board, but I have found that when I get a person (even one who wants "resonable gun control") to look at the Constitution as a restriction on government, if they are honest with themselves, their views usually change.