Is there something in the water over at Slate?
In the past four days, no fewer than three of that site’s main writers have offered up a bizarre, revisionist version of the Second Amendment, and done so with all the nonchalance of a man who is proposing that two plus two is four. On Monday, Mark Joseph Stern informed his readers that “he disagree[s] that the Second Amendment protects an individual right to bear arms.” A few hours later, Dahlia Lithwick presented for public consumption one of the most historically illiterate essays that I have ever read, the gist of which was that the “Standard Model” interpretation of the provision was a “hoax” that has little purchase “outside of the GOP”; ”for most of U.S. history,” Lithwick claims, “the freedom guaranteed by the Second Amendment was . . . the right of the people of each state to maintain a well-regulated militia.” And yesterday, citing Lithwick, Jamelle Bouie ruined what was otherwise an excellent and insightful piece by proposing that the recent D.C. v. Heller ruling represented the transmutation of “a fringe right-wing vision of the Second Amendment — an individual right to bear arms” into “the dominant one.”
Such claims, to put it impolitely, represent the legal equivalent of Moon landing trutherism. Leaving aside that the plain meaning of the Second Amendment has been abundantly clear from the first moment a Bill of Rights was demanded — it is clear in the writings of those who demanded the measure; it is clear in the descriptions of all the republic’s early legal minds, among them William Rawle, Joseph Story, St. George Tucker, and Tenche Coxe; it is clear in the debates over the Fourteenth Amendment’s “privileges and immunities” clause, and in the unlovely legal decision that prompted that change; and it is clear in the legal commentary that came after the Civil War — it is simply not true that the “individual rights” understanding was the product of “right-wing” or “GOP” pressure. In fact, as Adam Liptak noted back in 2007, it was leftward-leaning professors who did a great deal of the legwork in ridding the legal profession of the “collective rights” lie — and it is a lie — that had become so disgracefully popular by the mid-to-late twentieth century. In a piece titled “A Liberal Case for Gun Rights Sways Judiciary,” Liptak correctly recorded that the restoration of the right to keep and bear was “thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.”
Among those professors are “Laurence H. Tribe, a law professor at Harvard,” who “said he had come to believe that the Second Amendment protected an individual right”; Adam Winkler, a professor at UCLA; and “several other leading liberal constitutional scholars, notably Akhil Reed Amar at Yale and Sanford Levinson at the University of Texas,” who “are in broad agreement favoring an individual rights interpretation.” As for the “earlier consensus” (which was in fact merely a historical blip, during which pretending that the right didn’t mean anything became popular)? That,
the law professors said in interviews, reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution. “The standard liberal position,” Professor Levinson said, “is that the Second Amendment is basically just read out of the Constitution.”
That a whole host of writers at Slate and elsewhere are still trying to read the right out of existence is outrageous. Indeed, as Fordham’s Nicholas Johnson has observed, the “collective rights” theory advanced as by Stern, Lithwick, Bouie and co. is so wholly incoherent — and so utterly discredited — that “not even the dissenters in Heller tried to keep [it] afloat.” (Nor, for that matter, has President Obama, who is smart enough to understand that the legitimate debate in this area revolves not around what the word “people” means in the Constitution, but around what is included within the term “arms,” and what regulation of the words “right” and “infringed” is legally permissible.)
We talk a great deal about “bubbles” in politics, and even more about the problem of the manner in which the Internet can be used to spread heinous ignorance within self-selecting groups. I can think of no better example in contemporary American life than the progressive media’s continuing interest in peddling this line.