Bench Memos

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Laurence Tribe, No Help At All


Opining in the pages of the Wall Street Journal, Harvard’s Laurence Tribe says that the Supreme Court should not render a decision in D.C. v. Heller, the Second Amendment case to be argued two weeks from now, that goes to either “extreme.”  Tribe proclaims himself one of the “liberal scholars [who], 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.”  But he doesn’t want the D.C. Circuit ruling upheld on the grounds staked out by Judge Laurence Silberman, which he believes “went overboard.”  Neither does he want the Supreme Court to hold that “no firearms ban could violate the Second Amendment unless it were to prevent states from organizing militias in their collective self-defense.”

Okay, what does Professor Tribe think the Court should say?  On this, he conspicuously says nothing at all.  Perhaps he may be excused for having run out of space, in a mere 800-word column, just trying to tell the Supreme Court what it shouldn’t do.  Perhaps he will write a sequel giving the Court positive counsel to accompany the negative he supplies today.  I would be very interested in reading it.

Or maybe Tribe has nothing more to say.  This would be no particular fault of his.  Hoist on Judge Silberman’s petard, the Court now seems to have no choice but to say something about which it has no particular expertise and on which it really has no proper authority–namely, how much and what kinds of gun control are consistent with the Second Amendment.  In short, the Court is trapped in a box it has carefully, lovingly constructed over the last century–the box called judicial supremacy.  Before it is finished–and having entered this thicket it may never finish at all–the Court will have to construct myriad “doctrines,” “tests” (some with multiple “prongs”), and “standards of review.”  It will have to utter nonsense about rational bases, compelling interests, medium-lukewarm-sorta-serious “scrutiny,” and other assorted absurdities.  I’ve said before that friends of the right to bear arms will rue the day they asked the Court to take care of their interests.  Win or lose in Heller, the Constitution–including the Second Amendment–will be the loser.

Or the Court could make a bold dash for the exit from this jail cell it has constructed for itself, declare the Second Amendment’s meaning none of its business, and leave the battle over gun control where the friends of keeping and bearing arms have, nearly always and everywhere, looked after themselves just fine–in electoral and legislative politics.


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