Balkinization  

Sunday, May 06, 2007

The Second Amendment is Embarrassing No More

JB

This New York Times article discusses the role that liberal law professors played in promoting the notion that the Second Amendment protects an individual right, including in particular, a 1989 Yale Law Journal article by Sandy Levinson, The Embarrassing Second Amendment. The number of copies of this article circulating around the Internet (I've linked to three) suggest its importance to nonlawyers, who have tended to care much more about the Second Amendment than most legal academics.

The New York Times story argues that liberal law professors played an important role in rehabilitating the individual rights theory of the Second Amendment. In fact, I think that the views of ordinary citizens and the social movement for gun owners rights-- two examples of democratic or popular constitutionalism-- played a much larger role.

If the Supreme Court eventually holds that the Second Amendment protects an individual right, it will largely be because social and political movements changed popular opinion and influenced elite legal opinion. These changes have been coming for some time: The Bush Justice Department has already adopted the individual rights position, and so too has the D.C. Circuit in its recent Parker opinion.

This is not the first time changes in popular notions of the Constitution have influenced legal doctrine. In fact, social and political movements' efforts to change constitutional culture and popular opinion are among the most frequent mechanisms through which lawyers and judges change their minds about the meaning of the Constitution.

Comments:

Professor Balkin:

This New York Times article discusses the role that liberal law professors played in promoting the notion that the Second Amendment protects an individual right, including in particular, a 1989 Yale Law Journal article by Sandy Levinson, The Embarrassing Second Amendment. The number of copies of this article circulating around the Internet (I've linked to three) suggest its importance to nonlawyers, who have tended to care much more about the Second Amendment than most legal academics.

I would disagree that legal academics do not have a interest in the subject. Professor Levinson's famous article was one the first of a truly prodigious wave of legal and historical scholarship.

The New York Times story argues that liberal law professors played an important role in rehabilitating the individual rights theory of the Second Amendment. In fact, I think that the views of ordinary citizens and the social movement for gun owners rights-- two examples of democratic or popular constitutionalism-- played a much larger role.

A heavy majority of federal district and circuit courts of appeal have been successfully ignoring popular opinion in favor of an individual right to keep and bear arms for decades. In contrast, the Emerson and now the Parker decisions do not cite to polls or popular opinion as did the Supreme Court in Atkins v. Virginia. Rather, they are filled with the Second Amendment legal scholarship of the past three decades.

It is important to understand that the NRA and other proponents of an individual right to keep and bear arms have long pursued a dual strategy - the popular movement to change the statutes to which you refer and a parallel effort to develop legal scholarship designed to change the legal climate in the courts.

The NRA Civil Rights Defense Fund is the branch of the NRA which promotes Second Amendment legal scholarship. Part of their effort is to encourage law students to research the subject through writing contests. As a matter of disclosure, I participated in one such contest during my second year of law school.

I do not know how much groups like the CRDF contributed to the wave of Second Amendment legal scholarship, but I would suggest that it was this legal scholarship and not popular opinion which is now beginning to move the courts to reconsider the legal fiction that States rather than the People enjoy the Second Amendment right to keep and bear arms.
 

"changes in popular notions of the Constitution"

While academic opinion about the meaning of the 2nd amendment has changed radically over time, is there really any evidence that popular opinion ever took the 2nd amendment to be anything but a guarantee of an individual right? If so, I'm unaware of it.

Frankly, if public opinion had followed academia, I doubt academics would ever have been the slightest bit embarassed at that "collective rights" rationalization.
 

Bart's comments merely demonstrate my point. Changes in academic views about the meaning of the Constitution have come from a long and sustained campaign by the NRA; they were also affected by the rise of conservatism and conservative social movements during the past three decades.

The wave of legal scholarship on gun rights in the past few decades since Levinson's article is due to the fact that legal academics, like lawyers and judges, respond to changes in the political and constitutional culture that surrounds them. This is true even though the legal academy is generally more liberal than the general population.

Moreover, it is worth noting that in the past three decades a significant number of conservative and libertarian scholars have entered the legal academy and written about different subjects from different perspectives, thus shifting the scholarly agenda. The number of conservative legal scholars increased over time in part because the country itself turned more to the right during the 1980s and 1990s.

The legal academy is hardly insulated from large scale changes in political culture. The change in scholarship on second amendment is simply one example.
 

Couple of comments:

(1) I hate the quote in the article from the guy who suggests that liberal law profs are being contrarian on this issue in order to draw attention to themselves -- as if the pressures to conform to conventional wisdom were somehow not just as plausible an explanation for why people hold the conventional view.

(2) Issues of this sort capture the sheer wackiness of constitutional law rather nicely. What sort of a social practice would determine issues regarding the contemporary regulation of firearms on the basis of what people in the 18th century thought about the matter? (This is a rhetorical question).
 

Professor Balkin:

Perhaps I misunderstood your original point. I agree completely with your second post.

Given the amount of legal scholarship on this point by conservatives/libertarians, I thought it was amusing that the NYT gave nearly all the credit to liberal scholars.
 

"What sort of a social practice would determine issues regarding the contemporary regulation of firearms on the basis of what people in the 18th century thought about the matter?"

But that's not what we're doing. We're determining the issues on the basis of an amendment to the Constitution people in the 18th century ratified. Until it's repealed vial Article V, that amendment HAS to be binding, if we're to be a nation under law.

IMO, what people thought in the 18th century is of marginal importance; Barring a fixed determination to have gun control be 'constitutional' regardless of what the Constitution might happen to say, nobody would think for a moment to deny that the phrase, "right of the people" refered to anything but an individual right. Historically, the "collective right" interpretation is nothing but a bit of sophistry invented by people who wanted to infringe exactly what the Constitution prohibited infringing.
 

Brett said...

jb: "changes in popular notions of the Constitution"

While academic opinion about the meaning of the 2nd amendment has changed radically over time...


The legal fiction that the States rather than the People exercised the right to keep an bear arms is largely a 20th Century creation, probably arising from urbanization and the use of automatic weapons and sawed off shotguns in the gang warfare of Prohibition.

Our county court house has a library which dates back to the late 19th Century when the court house was built. After the Parker decision came out, I checked out the section on Arms in a 1903 summary of the law in that libarary while waiting for a hearing. There was no mention of a "states rights" interpretation of the Second Amendment. It was assumed that this was an individual right. Rather, the discussion concerned what arms were covered under this right - military or civilian.
 

Barring a fixed determination to have gun control be 'constitutional' regardless of what the Constitution might happen to say, nobody would think for a moment to deny that the phrase, "right of the people" refered to anything but an individual right. Historically, the "collective right" interpretation is nothing but a bit of sophistry invented by people who wanted to infringe exactly what the Constitution prohibited infringing.

I guess there are lots of us sophists around then. What seems sophistry to me is willfully ignoring the militia clause in order to claim an individual right where none was provided. That's leaving aside issues such as whether the 2d A even applies to the states at all.
 

mark field:

This is not even close.

The Constitution has not had a problem saying states when it means states and people when it means the people.

Once again, the militia then and to a lesser extent under present statute means an armed citizenry. There is no substantial difference between the People and the militia. Under the republican theory of the day, they were one and the same thing.
 

Bart,

You say that when you checked out the section on Arms in a 1903 summary of the law in that library, it took for granted that the right to keep and bear arms was an individual one, and the only disagreement was on the type of arms.

Did the 1903 summary also say that the purpose of this right was to ensure that ability to offer armed resistence and revolution against the US government?
 

el:

The intended uses of the Second Amendment right to keep and bear arms elicited some discussion right after the enactment of the Constitution and then later after Courts invented the collective right legal fiction to neuter the Second Amendment. In between, there was not much discussion along these lines. There were about a dozen cases concerning what arms were protected under the Second Amendment.
 

Mark Field:

I guess there are lots of us sophists around then. What seems sophistry to me is willfully ignoring the militia clause in order to claim an individual right where none was provided. That's leaving aside issues such as whether the 2d A even applies to the states at all.

The "individual right" people have to contend not only with the language, but with the alternative language proposed but not adopted. They're free to make their conclusions, but they're not free to argue that no valid alternative exists.

Cheers,
 

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