After Newtown, Laurence Tribe Addressed the Supreme Court's View of the Second Amendment

By Marc Ash, Reader Supported News

03 October 17

In the wake of the breathtaking tragedy in Newtown, Connecticut, with a dialog in earnest on gun control and the second amendment taking shape, I reached out to Harvard's preeminent constitutional law scholar Laurence H. Tribe. What follows is my inquiry, and Professor Tribe's response in its entirety.

It's important to bear in mind what Tribe said then. We're here again. - Marc Ash/RSN

rofessor Tribe,

With a newly energized debate about the second amendment unfolding I wonder if you would add anything to the following:

Tribe, well known as a liberal scholar, concludes that the right to bear arms was conceived as an important political right that should not be dismissed as "wholly irrelevant." Rather, Tribe thinks the Second Amendment assures that "the federal government may not disarm individual citizens without some unusually strong justification."

Tribe posits that it includes an individual right, "admittedly of uncertain scope," to "possess and use firearms in the defense of themselves and their homes."

None of Tribe's new thinking changes his view that gun-control measures are "plainly constitutional," but his shift has been enough to anger gun control advocates.

Assuming that you are quoted fairly above, the individual right would seem to be at odds with gun-control measures that are "plainly constitutional".

I think it's a fairly safe bet that the second amendment will be central to the coming dialog.

December 17, 2012 9:44:49 AM EST

"Marc,

My conclusions about the scope of the Second Amendment, as expressed on pgs.894-903 of the 3d edition of my constitutional law treatise (2000), were explained at very considerable length in that book, were couched in a deliberately tentative form, have been refined over the past decade, and can't be quickly summarized, although I certainly believe that restricting the kinds of high-powered weapons and ammunition that made possible the horrific slaughters of innocent children and others in recent days and months is well within the power of government even as the Supreme Court has misguidedly interpreted the Second Amendment in Heller and McDonald, purporting to be guided by the original meaning of the text but in fact being driven by an incoherent mishmash of non-originalist considerations.

In my treatise, I expressed the view that constitutional interpreters who are uncomfortable with what I called "constitutional time travel," in which Reconstruction Era developments could retroactively change the meaning of Founding Era constitutional provisions - and that would certainly include the most "conservative" members of the current Court - ought to conclude that the only "individualistic right to keep and bear arms" (that is, the only right to keep and bear arms independent of the organized militia) is a limited right of self-defense that people may exercise vis-à-vis state and local "efforts at disarming people," a right derived from the Fourteenth Amendment rather than the Second, but that "federal gun control legislation [is] essentially invulnerable under the Second Amendment provided the state militia [is] not undermined." P.902 n.221 (italics in original).

It badly distorts the meaning of everything I have written on the subject to treat me as remotely hostile to the comprehensive national regulation of firearms and ammunition possession, transfer, and use; and it even distorts my meaning to regard my views as similar to those that the Roberts Court has expressed on the subject, although I hasten to add that even this Court's unfortunate views leave very substantial room for close regulation and even prohibition of entire categories of dangerous firearms and the ammunition that makes them lethal. The fact that many of my fellow gun control proponents were disappointed by the nuanced character of what I wrote in 2000 shouldn't be allowed to distract from my continuing conclusion that the Constitution permits, and that sane public policy demands, vastly stricter firearms regulation than exists in the United States today."

Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.