The View From Cambridge: Professor Tribe on the Guns Case
This is the first in our 2-part series on the guns case from prominent professors at Harvard Law School. This piece, by Professor Laurence Tribe, was originally published as an op-ed in the Wall Street Journal. Part 2 in this series, an op-ed by Professor Charles Fried, is here.
The Supreme Court is set to hear oral argument later this month in a politically charged gun-control case from the District of Columbia. The case involves a city resident who contends that the District is violating his rights under the Second Amendment with a citywide ban on handguns.
Gun enthusiasts on the right are all but daring justices who protect a woman’s right to choose, nowhere mentioned in the Constitution, to trash the “right of the people to keep and bear arms,” enshrined in the text of the Second Amendment. If the Supreme Court does what they fear and reduces the gun right to a relic of the days when all “able-bodied men” constituted each state’s “militia,” they will use that defeat to suggest that we need a president who will bring us a truly “conservative” Supreme Court.
Those on the left have at the same time challenged a court that they see as already leaning hard right to live up to its conservative principles, follow precedent, and limit the Second Amendment — as the text of its preamble seems to invite — to the preservation of each state’s “well-regulated militia,” ending once and for all the idea that the Constitution enshrines a personal right to wield firearms.
The court would be foolhardy to accept either side’s invitation that it plunge headlong into the culture wars by accepting these extreme ways of framing the issue. It is true that some liberal scholars like me, having studied the text and history closely, have concluded, against our political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of state militias and national guard units. Opponents of the District’s flat ban on handgun possession have cited my words to the court and in newspaper editorials in their support.
But nothing I have discovered or written supports an absolute right to possess the weapons of one’s choice. The lower court’s decision in this case — the D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area to be unconstitutional — went overboard. Under any plausible standard of review, a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.
For the Supreme Court to go any further than this in overturning the lower court’s decision — for it to hold, for instance, that no firearms ban could violate the Second Amendment unless it were to prevent states from organizing militias in their collective self-defense, as the District appears to urge — would gratuitously fan the flames of doubt about the court’s commitment to core constitutional principles, and would save no lives in the process.
Equally foolish would be a decision tilting to the other extreme and upholding the lower court’s decision simply because the right to bear arms is, judicial precedent to the contrary notwithstanding, a right that belongs to citizens as individuals. Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one’s choosing.
Worse than that, it would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government’s uniquely powerful role as governor of the nation’s capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.
Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.
Chief Justice John Roberts, ever since his days as a judge on the court of appeals, has virtually defined judicial modesty by opining that if it is not necessary for the court to decide an issue, then it is necessary for the court not to decide that issue. For this reason, and for the further reason that the scholarship on the reach of the Second Amendment and its implementation is still in its infancy, the court should take the smallest feasible step in resolving the case before it.
Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved. But to do anything else would ill-suit a court that flies the flag of judicial restraint.
Mr. Tribe, a professor of constitutional law at Harvard Law School, is the author of the forthcoming book “The Invisible Constitution” (Oxford Press).
I fail to see where the affirmation of the lower court decision would be foolish:
“Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one’s choosing.”
Yes, precisely so, and the problem with being able to choose your weapons is? (as long as the chosen weapon is not one that has been deemed not protected by the 2nd amendment)
“Worse than that, it would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government’s uniquely powerful role as governor of the nation’s capital”
Precisely so, indeed the intent of the amendment is not only to protect the people of the individual states but ALSO people in general (such as those living in Washington DC) from an all-powerful national government.
So I think Prof. Tribe has failed to connect the dots between a possible consequence and its desirability. I do however completely agree that the decision should be narrow (is it an individual, fundamental right?) and not even go into its applicability to the states via the 14th amendment, or via the necessity of state residents to own arms in order to form the US militia when called (I believe this was stated by Cruishank?), or by some other method.
Comment by Andrejs Vanags — March 17, 2008 @ 6:46 pm
How sad, to see L Tribe, who had the courage to speak his convictions in his law-book, that the 2A does indeed protect a RIGHT (of “uncertain scope” anyway), now try to weasel out of that position.
Guess it was ok in theory, but his “political instincts” are now back fully in control. I doubt he would suggest the 4A could be so easily disposed of.
But even worse, he appears not have even read the District court decision or the briefs now filed before the SC. Among his several glaringly misinformed statements is “absolute right to possess the weapons of one’s choice.”, because nowhere in Hellers’ arguments does he ask for any such thing. He asks only that the right to have “functional firearms” including “hanguns” in his home for self-defense. NOTHING in Heller suggests that the 2A is an “absolute right”.
But CLEARLY, handguns are one the weapons, that the militia, would be expected to bear, when called for service, as they “arms” that would be useful to the militia, and they are in “common use”.
It seems that even L Tribe cannot bring himself to admit, against his ideological desires, that words actually mean something. How sad that America’s pre-eminent legal scholar should be willing to advocate a position that would gut 1/10 of the BofR’s while claiming that he agrees the 2A protects that very right. How sad, that even we neanderthal gun-owners have more respect for the Constitution than he.
Comment by scott wilkinson — March 17, 2008 @ 10:04 pm
In summary, Tribe now posits that ‘The right of the people … SHALL NOT be infringed’ is somehow read to mean ‘a complete and total ban on all functional firearms is OK’.
It wil be amusing to hear the Justices ask Dellinger ‘How is it that you come before us to argue an ‘implied right of self defense’ in a law that says no such thing, and offer that as justification for the law ? Is it your position that the law as written is OK because you assume that judges will ignore it when they take the mood ?’
“Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.”
Does he feel the same way about the 1st, 4th, etc ? That argument is at the heart of the DC side, that ‘Even if the 2nd means an individual right, states are free to ignore it’.
Alan Gura is going to have a VGD ( Very Good Day )today !!! Winning his first SC case !
Comment by Paul Milligan — March 18, 2008 @ 9:00 am
I find it amazing that there is such fear of law abiding citizens.
I wonder why I was allowed to carry arms during my military service or control nuclear weapons, yet my possession of arms of my choosing is such a disaster in civilian life? I’m left wondering why police are not a standing army?
I’m surprised I’m allowed to exist in society after being tainted by war?
I am simply amazed that the response to criminal activity is to deny law-abiding citizens their rights for the acts of criminals?
I left wondering what the real motivation must be.
I wonder if the good professor in understands the meaning of the words “shall not be infringed”?
I wonder if the words of the preamble of the U.S. Constitution, “.. and secure the Blessings of Liberty to ourselves and our Posterity” has any meaning any more.
Neither the government at any level, nor police will accept legal responsibility of my safety, while securing it for themselves, yet they are all ready to deny me the right to protect myself and my family in the manner of my choosing?
What arrogance!
Comment by Bruce Hutfless — March 18, 2008 @ 6:00 pm
I am an attorney in California, a member of the NRA, an owner of firearms, a veteran of the Air Force and the Army and I was surprised that when attending law school we never, I repeat, never discussed the 2d amendment in the Constitutional Law course. I asked my law professor and he said it was as dead as the “contracts clause” of the constitution.
Well, here we are, about to rewrite the effect of the individual right. Yes, it will have an effect on stupid and illogical laws “abridging” my right to “keep and bear” arms. Oh, well.
I look forward to bringing challenges to restrictive and soon to be unconstitutional laws the liberal and feel-good California legislature have passed in previous sessions.
Hooray for the Supreme Court.
Comment by Laurence F. Haines — March 19, 2008 @ 3:18 am
I am a little bothered by the conflation of owning a weapon & brandishing one. If Mr. Tribe were, like me, licensed to carry a concealed weapon in his state he would know that owning a weapon is a constitutional right; but “brandishing” one falls under the category of employing deadly force, which may or may not be legal depending upon the circumstances. (Unlawful brandishing is usually an offense in and of itself and may also constitute an act of assault.)
A ruling that the 2nd Amendment is an individual right would have no effect upon the legality of what a citizen may choose to do with her weapon. And as much as I admire Tribe’s intellectual honesty, it bothers me to see the same old liberal trope of trying to conflate gun ownership with a bloodbath. They were wrong about Florida, Texas, and every other state that instituted “shall issue” permits instead of “may issue” permits. Gun crime goes down when law abiding citizens are armed, & up when they are disarmed.
Comment by Mark Gibson — March 19, 2008 @ 9:09 am
Isn’t Professor Tribe that same guy that said, “The people’s ‘right’ to be armed cannot be trumped by the [Second] Amendment’s preamble.” Nor can the government pronounce the militia dead and then decree that the right to bear arms is archaic.” That statement seems to not be in line with wht he is saying here.
Comment by John Bechtel — March 19, 2008 @ 7:14 pm
I’m I reading Tribe’s comments correctly? Is he really saying that, as long as we have non-functioning weapons, the Second Amendment is not infringed??????
I knew it! We’ve found Abner Mikva’s long-lost son!!!!
Comment by David Waits — March 23, 2008 @ 6:26 pm
I tend to agree in admiring the intellectual honesty of Mr. Tribe in admitting his own conflict in interpreting the 2A but am, at the same time, dismayed how he can allow sociopolitical bias to betray his intellect. I can’t say it’s dishonest because he freely admits it, and since I have my own problems with this or that part of some amendments I can certainly sympathize, but in this case I can only surmise that his pontificating is simply the ranting of an undisciplined mind. That sort of stuff is what conspiracy theories thrive on!
The question was asked in an earlier post, “why would he do that?”, and I posit that a certain portion of society will interpret his writings as proof that “they” know the 2A means we armed citizens have a constitutional right to keep our arms but they simply disagree with it, and therefore will look you straight in the eye and lie to you. They are expecting you to lie down and die in front of deadly criminals because it somehow for the greater, philosophical good. I would ask Mr. Tribe to explain to me, how does the rape or murder of innocent people feed a greater purpose? What part of “the people” don’t you understand, and how can “the people” mean the individual in other amendments, but not in the 2nd? How many people have to suffer rape and death before we stop worrying more about criminal rights than victims?
Comment by Curtis Oakes — March 25, 2008 @ 1:42 am