Harvard constitutional legend Laurence Tribe has finally spoken out on D.C. v. Heller in a Wall Street Journal op-ed. This had to be hard for him, as he’s clearly conflicted on his support of gun control and his johnny-come-lately belief that the 2d Amendment gives a personal right to keep and bear arms.
So what does a Solomonic lawprof do when faced with such a dilemma? Split the baby, of course.
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.
So we have a right to counsel, but no right to select one of our choosing if we can afford one? We have a right to free speech, but no right to use adjectives? We have a right to keep and bear arms, but only the weapons approved by the government and only in the places the government allows?
The logic gets strained even further as Larry (the lawprofs call him Larry. Even though I don’t know him, I’m going to call him Larry too to make it look like we’re old friends) goes on.
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.
So the Constitution, the one that applies in the rest of the United States, shouldn’t apply in the same way to Washington, D.C., because of the control the government exerts over a military installation? Did he pick Fort Knox because it was a base or because of the gold? Maybe there’s gold hidden under the streets of Washington that needs to be protected? Or maybe the gold is used metaphorically, referring instead to the lucre in lobbyists pockets.
There is simply no rhyme or reason connected with Larry’s position. When you’re a legend, are you absolved from the need to express a rationale for your opinions?
But there’s a back story to Larry Tribe’s involvement. According to David Kopel.
Harvard Law School Professor Larry Tribe was contacted, and asked if he would like to write an amicus brief in support of Heller. Tribe wrote back to Heller’s attorneys that he did not want to do an amicus brief, but he would be interested in exploring his playing a “more central role” in the case.
Even legends have to earn a living. It looks like Larry wanted the gig as one of Heller’s attorney, ready to argue the individual rights position to the Supremes on behalf of Heller. Now, he eschews that position (after not getting the gig) and argues in the WSJ for the only unprincipled position available.
No doubt, someone will seize upon the fact that “Larry said so” to support the position that there is a 2d Amendment individual right to keep and bear arms, but the right isn’t “absolute”, as in it is subject to whatever restriction or limitation they think should be imposed. The problem is that it flies in the face of reason. If there is a fundamental right, then it has to be treated the same as any other fundamental right. Otherwise, it is merely a meaningless label, and reduces all “fundamental rights” to meaningless labels subject to government regulation.
Perhaps Larry is just staking out the middle ground, since the reasoned positions have long since been claimed by others and he wouldn’t get any credit with a “me too” position at this stage. But if Larry Tribe can’t come up with any viable rationale to support the “right but regulatable” position, then it’s likely that we haven’t missed anything and there is just no logical support for this result.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
So, do you really think that people should be able to have whatever weapons they choose? What about anthrax? Machine guns? Atomic bombs? And why don’t originalists hold to the original intent of the framers about the 2nd amendment, yet they do for every other amendment? Is there any history to support the idea that the drafters of the amendment were thinking about private uses of weapons?
Lots of questions. Do some reading, come back and tell me what you think.
“Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.”
John Adams in A Defense Of The Constitution
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams during Massachusetts’ U.S. Constitution ratification convention in 1788
“No free man shall ever be debarred the use of arms” Jefferson: He wrote this as part of the proposed Virginia Constitution, in 1776.
Jefferson quoting Cesare Beccaria: “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference—they deserve a place of honor with all that’s good.” George Washington: from a speech he made to Congress on January 7, 1790.
…and many many many more. Do some basic research.
There’s plenty of support in comments by the drafters that the second amendment covers private use, asmo has some good ones. There are plenty more.
I’ve always thought the most obvious answer as to whether or not the founders supported private firearm use/ownership is to look at the Bill of Rights itself. There’s no question that Amendments 1 and 3-10 give rights to the people and limitations on the government’s power. I’m not a Constitutional scholar, but I have a hard time believing that in this document granting power and rights to the people, the founders would just randomly inert a provision limiting the rights of the people and giving the right to bear arms to the government.
As far as whether or not I can go out and buy a machine gun or an A-Bomb, that argument only works if other amendments to the constitution haven’t been subject to limitations, ie, yelling fire in a crowded theater.
As a general statement (meaning this isn’t directed at you BCT), the Second Amendment has been the subject of intense scrutiny and the various arguments have been made and discussed in the briefs of parties and Amici in D.C. v. Heller. Since many of us have spent a bit of time reading the arguments for both sides and have become much more familiar with the arguments, their legal, historical and linguistic support, not to mention the prognostications of future consequences of the decision, some “off-the-cuff” comments and questions, or questionable partisan “canned” answers, may not have the desired result.
I think this issue is huge for society in general and lawyers in particular. I urge everyone to become truly familiar with the argument, both because they are fascinating and because one cannot offer a legitimate opinion without having a basis in knowledge to do do so. It would make for a much more interesting discussion if everyone was discussing this on a level playing field.
I remember a Calvin & Hobbes comic where Calvin announced he would never read a newspaper so that way, when he wanted to complain about things, he would have absolutely no responsibility for knowing anything about the subject.