Bench Memos

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Liberals Make All Things Respectable


There’s an odd article on the front page of today’s New York Times: Adam Liptak reports that the “individual rights” interpretation of the Second Amendment is making headway “thanks largely to the work over the last 20 years of several leading liberal law professors.”  The headline really says it all: “A Liberal Case for Gun Rights Helps Sway Judiciary.”  When it was just those terribly low types like the NRA, you know, you couldn’t possibly expect federal judges to take the argument seriously.  But when Sanford Levinson, Laurence Tribe, and Akhil Reed Amar climb on board (and these are the only liberal scholars Liptak mentions as doing so), well, suddenly an argument becomes respectable.

What makes the article so odd is that it is practically not at all about the arguments on this subject.  Instead it is about the cultural phenomenon of who is making the arguments, with a prediction that because some liberals are now on board, the recent Parker v. D.C. ruling may survive review by the en banc D.C. Circuit and the Supreme Court.

This may prove to be true, but here’s what worries me.  As Liptak puts it, “just as the First Amendment’s protection of the right to free speech is not absolute, the professors say, the Second Amendment’s protection of the right to keep and bear arms may be limited by the government, though only for good reason.”  Right.  And that means that our de facto legislators for all gun control in this country will be the federal judiciary.  I prefer the status quo, in which legislatures decide the question, for good or ill.  And that, by the way, is also the best reading of the Second Amendment–as of the First.

But I haven’t space for the whole argument myself–not here anyway!


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