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Larry Tribe's flip-flop in DC v. Heller

Last May, after the D.C. Circuit Court of Appeals ruled in District of Columbia v. Heller that the D.C. handgun ban violates the Second Amendment, 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. Tribe urged that he could be effective with the center and left-of-center Justices.

The only "more central role" than that of amicus-writer is that of co-counsel for Respondent. And, obviously, the only position of a counsel for Respondent would be in favor of affirmance of the favorable judgement below. Of course a counsel might offer a different theory for why the decision should be affirmed.

Today in the Wall Street Journal, Professor Tribe penned an op-ed urging that the decision of the Court of Appeals be reversed; he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes "any plausible standard of review."

Professor Tribe has the right to change his mind, but the air of forceful certainty with which he today argues for reversal seems inconsistent with his unrequited offer from ten months ago to play a "more central role" in securing affirmance.

guest2847421:
Wasn't he, in the interim, hired as a consultant by Tom Goldstein's law firm?
3.4.2008 10:12pm
cboldt (mail):
Follow the money. Tribe's a hack.
3.4.2008 10:23pm
Hoosier:
He's an academic. His ego was wounded.
3.4.2008 10:27pm
DangerMouse:
he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes "any plausible standard of review."

If you can completely ban a "right" then it's not a right at all. Only a law professor could be this stupid.
3.4.2008 10:31pm
Prosecutorial Indiscretion:
DangerMouse: Seriously. What would Tribe's reaction be if someone acknowledged a constitutional right to abortion but went on to claim that a total ban passes any plausible standard of review?
3.4.2008 10:36pm
Sebastian (mail) (www):
I especially liked the comparison of the federal government's power to control DC with its power to control military installations (Ft. Knox).
3.4.2008 10:39pm
Vinnie (mail):
He's an academic.


Not an honest one.
3.4.2008 10:40pm
Bombast:
It's like arguing that freedom of speech is a right, but excluding verbs.
3.4.2008 10:43pm
Dennis Nolan (mail):
I'm surprised that no one has so far noticed that Tribe has just brought his position on Heller into line with Obama's: yes, there's an individual right to bear arms, but government can still do just what it wants. I thought Tribe had given up his dream of sitting on the Supreme Court, but perhaps not.
3.4.2008 10:49pm
AK (mail):
If Tribe wants Stevens' seat on the Supreme Court, he'll have to choke out Koh in the octagon.
3.4.2008 10:54pm
tvk:
Huh? He is a lawyer who advocates for a position. In what way is it inconsistent to offer to represent a client whose position you disagree with? I seem to remember people saying that CJ Roberts, before he was CJ Roberts, shouldn't be attributed the views that he argued before the Supreme Court since those were of his clients. So what happened to that?

And it hardly matters that Tribe was probably offering to do the representation for free. This is a high-profile, interesting case. You hardly need to agree with the respondent's position to want to get a piece of the action; and the district sure wasn't about to ask him to be their counsel.
3.4.2008 10:57pm
my2cents:
"Huh? He is a lawyer who advocates for a position."

It's his intellectual dishonesty that everyone is bothered by.

It's also SO obvious that he doesn't want to offend his liberal friends; thus is change of mind.

That's called hypocrisy.

So goes the world of academia.
3.4.2008 11:07pm
RELIAPUNDIT (mail):
dangermouse &prosecutorial indiscretion:

actually, tribe's gun control position is oncictent with his abortion position.

DangerMouse:

he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes "any plausible standard of review."

If you can completely ban a "right" then it's not a right at all. Only a law professor could be this stupid.
3.4.2008 10:31pm

Prosecutorial Indiscretion:

DangerMouse: Seriously. What would Tribe's reaction be if someone acknowledged a constitutional right to abortion but went on to claim that a total ban passes any plausible standard of review?
3.4.2008 10:36pm

TRIBE WOULD ARGUE THIS WAY: there is a constitutional right to LIFE, but laws which allow a mother to murder her baby while it's in her womb passes any plausible standards of review.
3.4.2008 11:08pm
my2cents:
That should be "his"
3.4.2008 11:08pm
33yearprof:
Hell hath no fury like a prima donna scorned!

Now that their past statements might actually mean something, Amar, Levinson, and Tribe are backpeddling like mad. It sad to watch.

The pressure to toe the lefty line at Yale and Harvard must be tremendous. Levinson, although a big cheese at Texas, seemed to "find Jesus" on this issue during the year he spent in New York (at NYU).
3.4.2008 11:09pm
Jackson Pollock (mail):
He wanted credit for a win in a closely-contested case.

Tribe loses before the Supreme Court. He loses. He's a loser. Name me the last case before the Supreme Court that Tribe won. Name one. This looks like a winning case and Tribe wants the glory.

He's trashing the Respondents, assuming he'll be ignored, and if Obama is President and he's teed up for Stevens' or Souter's seat, not only is he in line with Obama's view, but he's neither in line with whatever opinion the court hands down NOR ITS DISSENT. You can't pin him to any opinion the court goes with unless it adopts his approach en toto, in which case he claims credit for being in the judicial mainstream.

Tribe stopped writing his treatise years ago. Not because he's senile, but because he really, really wants to kill his paper trail. So now's he's all about the judicial minimalism. As if Tribe even comes close to being Cass Sunstein.
3.4.2008 11:10pm
Ric Locke (mail):
For those of us who aren't law professors, Tribe's formulation seems to square perfectly with Kelo. If "Due Process of Law" means whatever a randomly-selected City Council says it does, "Keep and Bear Arms" can equally well be redefined at will.

Regards,
Ric
3.4.2008 11:10pm
Chris Newman (mail) (www):
I'm in favor of overturning the DC gun ban, but I think people are not doing justice to Tribe's position. He is arguing not that a ban on all guns is consistent with the individual right in the Second Amendment, but that a ban on handguns is. I disagree with him, but it is not an absurd position to take that handguns don't qualify as a militia weapon. If you want to analogize it to the abortion debate, it would be something like recognizing an abortion right, but one limited to abortions that are needed to protect the health of the mother, and arguing that procedures falling outside that category can be banned consistent with the right. By all means argue against him, but facile character slurs and misrepresentation of his position don't advance the cause.
3.4.2008 11:27pm
Terrivus:
Jackson Pollock,

Actually, I think the prevailing view before oral argument is that respondents (ie, not Tribe's side) have the better chance of prevailing, even if it's only the "half" victory of getting the total ban struck down but not getting the standard they want.

Also, Obama (or any Dem president) would be a fool to nominate Tribe to the Court. He's too old, and everyone knows it.

I do agree with your second paragraph, though. It's been a long, long time since Tribe won anything before the Court (and not just 5-4 cases, either; see last year's Wilkie v. Robbins loss). So perhaps his taking the petitioners' side here is a positive sign.
3.4.2008 11:34pm
Oren:
If you can completely ban a "right" then it's not a right at all. Only a law professor could be this stupid.
Absolutely. It's RPGs or nothing!

PS. I think handgun bans blatantly violate the 2A. It's probably a bad sign when even people that support your find your arguments unpersuasive.
3.4.2008 11:34pm
Cominius (mail) (www):
As noted, Prof. Tribe's opinion piece is dishonest. He characterizes the DC law simply as a ban on concealed handguns, instead of a complete ban on the right to have an operable firearm in one's own home.

As the amici brief of the 31 states attorneys general notes: "An individual right that can be altogether abrogated is
no right at all." Prof. Tribe opines that under any standard of review such an abrogation would be acceptable.

My only question remains whether the Professor is just dishonest to buttress his case for a democratic nomination to the supreme court, or is his dishonesty a congenital disability. If a disability perhaps he can qualify as a supreme under ADA.

Our more detail opinion is at VirginianFederalist.com
3.4.2008 11:38pm
here today; gone tomorrow:
I'm reminded of the fairy tale "The Sleeping Beauty." Someone forgot to include one of the fairies on the guest list for the new baby's christening ceremony. That angered the excluded fairy so much that she put a curse on the baby.

The baby was saved by the fact that one of the good fairies arrived late to the party, after the curse had been laid on the baby. The good fairy's gift was to reverse the worst of the evil fairy's curse.

Please, please, may one of the good fairies arrive late and save the day.

And it's funny, but I remember some great minds saying that the only reason Tribe came out with his "individual rights" statement was because he was jockeying for a position on the Court. He's mad as h*ll that it's coming back to bite him in the butt -- all with no hope of him ever getting onto the Court.
3.4.2008 11:39pm
Dr. Ellen (mail) (www):
If we're talking "militia" weapons, an awful lot of military, police, and national guard units issue pistols to their members. That, or in some cases, require/permit them to buy their own.

Is Tribe saying that the "individual right" interpretation is even more restrictive than the bogus "militia" interpretation?

I get anoxia trying to scale the heights of the law. No wonder I cannot understand these things sometimes.
3.4.2008 11:51pm
Hoosier:
>>>Please, please, may one of the good fairies arrive late and save the day.

Paging Randy R.
3.4.2008 11:51pm
Sebastian (mail) (www):
I disagree with him, but it is not an absurd position to take that handguns don't qualify as a militia weapon.

Why is that? Handguns are commonly issued and used by the military.
3.4.2008 11:55pm
hawkins:

Why is that? Handguns are commonly issued and used by the military.


Does this mean the Second Amendment protects the use of any weapons used by the military?
3.5.2008 12:01am
Jackson Pollock (mail):
Actually, I think the prevailing view before oral argument is that respondents (ie, not Tribe's side) have the better chance of prevailing

You must have misunderstood me. I think Tribe wanted to represent Respondents because he suspected they'd win. He is now carving a position that is neither the Respondents' nor the Petitioners', while still thinking Repondents are likely to win.
3.5.2008 12:04am
Vinnie (mail):
He's mad as h*ll that it's coming back to bite him in the butt -- all with no hope of him ever getting onto the Court.

From someone who hasn't been following his whole career that is not a bad thing.
He is letting personal feelings get in the way of the law. As a judge would I expect him to uphold the law as written or strike it down on competent grounds.
Until he can list which of my rights can be abrogated by population density. How dense and which rights. I don't think this new tact is competent.
3.5.2008 12:07am
Gaius Marius:
Tribe is the most intellectually dishonest legal academic.
3.5.2008 12:07am
gattsuru (mail) (www):
I disagree with him, but it is not an absurd position to take that handguns don't qualify as a militia weapon.

I'd argue that it would be fairly absurd. Handguns have shown military, police, and militia uses since the days of the 13 Colonies. Several of the most popular modern handguns were initially designed for national guard and military use (such as the m1911), and GLOCKs are probably more common police tools than every rifle combined. The Militia Act of 1792 required every militiaman to arm themselves with a "musket or firelock", with documentation from that time considering pistols to be acceptable as a musket or firelock.
3.5.2008 12:13am
Jim at FSU (mail):

I'm surprised that no one has so far noticed that Tribe has just brought his position on Heller into line with Obama's: yes, there's an individual right to bear arms, but government can still do just what it wants. I thought Tribe had given up his dream of sitting on the Supreme Court, but perhaps not.

Very perceptive. I am ashamed I didn't think of that.
3.5.2008 12:17am
gattsuru (mail) (www):
Does this mean the Second Amendment protects the use of any weapons used by the military?


If they could be defined as "arms" under the definitions used by the average man (either today or of the 1800s), yes, I think that's pretty clear.

You'd still be quite capable of passing laws which made it through strict scrutiny, so don't worry, you can still ban those dangerous nuclear weapons and the MOAB (although I note that the latter one isn't banned currently).
3.5.2008 12:22am
Frege:
33yearprof: I'm glad you mentioned Levinson. I watched an interview with him a few weeks ago, on Charlie Rose I think. I remembered him advocating an interpretation that was more individual right several years ago, and was surprised by what I heard in the interview.
3.5.2008 12:23am
A. Zarkov (mail):
"I'm surprised that no one has so far noticed that Tribe has just brought his position on Heller into line with Obama's:..."

From the Concord Monitor

Tribe called Obama the "best student I ever had" and the "most exciting research assistant."

Is Tribe on record as having said this before BHO started his run for the presidency? I find it hard to fathom that Tribe really believes this, but you never know.
3.5.2008 12:39am
justmt2cents:
Can someone point me to Amar's change? (Not arguing he didn't change, just want more info).

My gosh, are there ANY moderates/conservatives at YLS?
3.5.2008 12:41am
Jim at FSU (mail):
Honestly, I don't see how anyone can make an argument that pistols, which were in widespread civilian and military use at the time of the founding could possibly not have been seen as protected by the second amendment as ratified.

And the "nukes and poison gas" meme is a pretty pathetic ad absurdum argument that I have heard from way too many con law professors. If you can't figure out a way to ban nukes in a way that satisfies strict scrutiny, you need to cut back on the lead in your diet.

The assault rifles and machine guns of the modern soldier are entirely protected IMO. They aren't susceptible to any sort of mischief that can't be accomplished by an ordinary rifle or shotgun. There is basically no distinction that protects the semiautomatic rifle while banning the machine gun. I think a lot of non-gunnies have a knee-jerk reaction against any weapon that looks scary or is called "machine gun" or "assault rifle." But the truth is that the utility is not much different from weapons that are widely and uncontroversially owned by civilians today.
3.5.2008 12:41am
Jim at FSU (mail):
Honestly, I don't see how anyone can make an argument that pistols, which were in widespread civilian and military use at the time of the founding could possibly not have been seen as protected by the second amendment as ratified.

And the "nukes and poison gas" meme is a pretty pathetic ad absurdum argument that I have heard from way too many con law professors. If you can't figure out a way to ban nukes in a way that satisfies strict scrutiny, you need to cut back on the lead in your diet.

The assault rifles and machine guns of the modern soldier are entirely protected IMO. They aren't susceptible to any sort of mischief that can't be accomplished by an ordinary rifle or shotgun. There is basically no distinction that protects the semiautomatic rifle while banning the machine gun. I think a lot of non-gunnies have a knee-jerk reaction against any weapon that looks scary or is called "machine gun" or "assault rifle." But the truth is that the utility is not much different from weapons that are widely and uncontroversially owned by civilians today.

I'm not sure how to convince a non-gunny of this, however obvious it may seem to me.
3.5.2008 12:43am
Chris Bell (mail) (www):
I agree with tvk, how is this in any way a flip flop? A flip flop requires taking a position and then changing it.

Why is offering to represent someone in front of the Supreme Court the same as taking their position? I'm sure I could find numerous SCOTUS litigants that I completely disagree with - yet I would take their cases in a heartbeat.

So would you.
3.5.2008 12:51am
justmt2cents:
And as long as I'm on the subject... What are the moderate/conservative/libertarian/fed-soc law professors doing to recruit more balanced faculty members into the Academy?

I'm sure that some would say that it's hard for profs on the right to recruit since they are so outnumbered. But I'm getting tired of this argument and what seems to be more of a concern of merging with the Academy rather than transforming it.

My sense is that the right leaning folks are only willing to invest in potential law professors who possess "perfect" vitas (e.g., SCOTUS clerkship, YLS grad). But this approach has its flaws:

1. It relies on an academic market which heavily favors liberal candidates (YLS grads)

2. Give places like YLS even more power over who teaches the next generation of law students

3. Buys into the whole notion that the current measures of reflect quality and not ideology.

In sum, it's time for the right leaning profs to grow some balls already.
3.5.2008 12:51am
Chris Newman (mail) (www):
gattsuru:

It's probably not worth arguing over where the line between "wrong" and "absurd" lies. When militia men were called up to train (to "well-regulate" themselves), were they expected to show up with pistols or muskets? I thought it was the latter, but freely admit that I don't know enough about the history (or the weaponry) to make a cogent argument for Tribe's position even if I were inclined to do so, which I'm not. My point was that some commenters seemed to be attacking Tribe for a manifestly absurd position that isn't really his. There's a difference between banning all guns and banning certain categories of them, and the latter is not necessarily inconsistent with the recognition of some form of individual right. Since I doubt the maximalist position that individuals have the right to own everything up to tactical nukes is likely to get much traction, it seems to me that one of the important challenges for those of us who would like to see a robust right to bear arms is precisely to articulate and justify the principles that we think should be used to determine what sorts of weaponry the state can and cannot ban. So I'd really like to see people engage constructively with Tribe's actual argument rather than just dismissing it.
3.5.2008 12:59am
Paul Milligan (mail) (www):
"but it is not an absurd position to take that handguns don't qualify as a militia weapon."

Apparently the US Military begs to differ with you.

Last month, (Friday, January 25, 2008) the US Army signed a contract :

"Accokeek, Maryland — "Beretta has just announced that it has been awarded a multi-year contract by the U.S. Army to deliver M9 pistols to servicemen and women as part of the U.S. Government commitment to ensure the operational safety and readiness of U.S. Armed Services worldwide.

The contract is for 25,403 M9 pistols with deliveries starting in June 2008 and continuing until February 2010. The U.S. Army also reserves the right to purchase additional M9 pistols as needed to meet their needs. All of these M9 pistols will continue to be manufactured at the Beretta U.S.A. facility located in Accokeek, Maryland."

"Each Beretta M9 pistol ships with 15-round standard magazines and is designed to accept 20-round magazines"

"In 2005, Beretta U.S.A. Corp. received 13 contracts for M9 pistols and component parts from the U.S. Army and U.S. Marine Corps. Many of the U.S. Army purchases were multi-year contracts lasting five years, from which over $31 million dollars in purchase orders have since been issued to Beretta U.S.A. Corp.

In addition to the M9, Beretta U.S.A. has developed the M9A1 pistol which incorporates various enhancements such as integrated Picatinny rail, enhanced grip checkering and magazine well modifications to allow for quicker tactical reloads. To date Beretta U.S.A. has supplied over 4,000 M9A1 pistols to the United States Marine Corps."
3.5.2008 1:03am
OrinKerr:
A true academic can change his mind, upon further reflection; I don't know why we just can't assume that this is what happened with Professor Tribe.
3.5.2008 1:27am
GunShowOnTheNet.com (mail) (www):
"The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.

- Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
3.5.2008 2:15am
Brett:
it is not an absurd position to take that handguns don't qualify as a militia weapon.


Yes, it is. It's, in fact, more than absurd: it's utterly, self-evidently, mind-bendingly insane, to the point where anybody suggesting such a thing with a straight face ought to be ashamed of themselves.
3.5.2008 2:17am
GunShowOnTheNet.com (mail) (www):
"Who are these militia? [A]re they not ourselves. Is it feared, then, that we shall turn our arms each against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

- Tenche Coxe, using the pseudonym "a Pennsylvanian", Feb. 20, 1788, Pennsylvania Gazette.

"Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

- Tenche Coxe, 'Remarks on the First Part of the Amendments to the Federal Constitution' using the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

Mr. Coxe was a prominent Philadelphian and political economist who was named assistant secretary of the treasury in 1790, commissioner of revenue in 1792, and purveyor of public supplies in 1803. Whose series of newspaper articles were very much approved by both Mr. Hamilton and Mr. Madison.
3.5.2008 2:18am
Dan Hamilton:

A true academic can change his mind, upon further reflection; I don't know why we just can't assume that this is what happened with Professor Tribe.


It is like someone saying that believe in Free Speach and at the same time that they believe that all political speach can be banned from Radio.

It doesn't make sence. No thinking person could seriously believe those two things. Think about it. The idea that arms doesn't include pistols. Really? Come on you are pulling my leg nobody could believe that.It doesn't pass the laugh test.
3.5.2008 2:19am
GunShowOnTheNet.com (mail) (www):
The following explains our God-given, Inherent and Inalienable Natural Right as it was INTENDED by the men whom framed our Constitution:

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . The citizens must rush tumultuously to arms..."

- Alexander Hamilton, Federalist #28.

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."

- Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).

"Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers."

- John Marshall, U.S. Supreme Court Chief Justice. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]

“Afforded us by God &Nature”

“Agreed to found our Rights upon the Laws of Nature....”

“...Which the Laws of Nature and of Nature's God entitle them...”

Life, Liberty and Property

George Washington: Concerning Arms in the hands of the People

"the overruling law of self preservation"

'for the common defence' (?)

"Rights of the citizen declared to be --"

"The Right to Self Defense"

"The right of self-defence never ceases. It is among the most sacred, and alike necessary to nations and to individuals."

- President James Monroe, Nov. 16, 1818 message to the U.S. House and Senate. [Journal of the Senate of the United States of America, November 17th, 1818.]

Right to Keep and Bear Arms - Historical Directories:

Origins

Precedent

After The Fact

Amendment II and the Law

"No, surely, No! they meant to drive us into what they termed rebellion, that they might be furnished with a pretext to disarm and then strip us of the rights and privileges of Englishmen and Citizens."

- George Washington, March 1, 1778 letter to Bryan Fairfax, Valley forge.
3.5.2008 2:25am
GunShowOnTheNet.com (mail) (www):
The REAL ORIGINAL INTENT behind the Second Amendment:

The Shay's Insurrection, "These the Legislature could not infringe, without bringing upon themselves the detestation of mankind, and the frowns of Heaven", Jan. 12, 1787

Commonwealth of Massachusetts, "and shall obtain an order for the re-delivery of such arms", Feb. 16, 1787

Journals of the Continental Congress, "...impolitic and not to be reconciled with the genius of free Govts...", Feb. 19. 1787

Letters of Delegates to Congress, "...An Act to disarm and Disfranchise for three years...", Feb. 27th, 1787

Letters of Delegates to Congress, "...this act has created more universal disgust than any other of Government...", March 6, 1787

Journals of the Continental Congress, "That a large body of armed insurgents, did make their appearance...", March 13, 1787

James Madison to Thomas Jefferson, "a great proportion of the offenders chuse rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty", March 19, 1787

A Proclamation, "and of being again renewed to the arms of their country, and once more enjoying the rights of free citizens of the Commonwealth", June 15, 1787

The Debates in the Federal Convention, "...let the citizens of Massachusetts be disarmed. . . . It would be regarded as a system of despotism.", Aug. 23, 1787

James Madison to Thomas Jefferson, "A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights", Oct. 24, 1787

"The people cannot be all, &always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century &a half for each state. What country before ever existed a century &half without a rebellion? &what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon &pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots &tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted."

- Thomas Jefferson, Nov. 13, 1787 letter to William S. Smith.

That's RIGHT people, it was intended to SECURE the God-given, Natural, Inherent and Inalienable Right of those that HAD transgressed the law. ALL 'gun control laws' are REPUGNANT to the U.S. Constitution.
3.5.2008 2:31am
Kazinski:
That is very gracious of you Orin to just ascribe it to a changing of the mind, kind of like ignoring someone picking their nose at the table so as not to embarrass then. I think Dennis Nolan had it right, he needs to get his position in line with Obama's.

To be sure Tribe is being honest when he said in his Op-Ed that his scholarship on the issue goes against his policy preference and his instincts. It is looks to me that his policy preference is now ascendant and his scholarship essence is in decline.
3.5.2008 2:31am
OrinKerr:
Dan Hamilton writes:
It is like someone saying that believe in Free Speach and at the same time that they believe that all political speach can be banned from Radio.

It doesn't make sence. No thinking person could seriously believe those two things. Think about it. The idea that arms doesn't include pistols. Really? Come on you are pulling my leg nobody could believe that.It doesn't pass the laugh test.

Dan, how do you define a thinking person? Is that a person who thinks like you? I often find Professor Tribe's positions unpersuasive, although I express that by explaining why I disagree rather than saying that he cannot think.

Kazinksi writes:
That is very gracious of you Orin to just ascribe it to a changing of the mind, kind of like ignoring someone picking their nose at the table so as not to embarrass then. I think Dennis Nolan had it right, he needs to get his position in line with Obama's.

To be sure Tribe is being honest when he said in his Op-Ed that his scholarship on the issue goes against his policy preference and his instincts. It is looks to me that his policy preference is now ascendant and his scholarship essence is in decline.
Kazinski, how do you know so much about Professor Tribe? To have such deep insights, you must have studied him closely.
3.5.2008 2:42am
Craig R. Harmon (mail):

he argued that the Second Amendment guarantees a real individual right (not militia-men while in militia service), but declared that a complete ban on handguns passes "any plausible standard of review."


Some read this as inconsistent, that is, that if a person believes that the second amendment protects an individual right to keep and bear firearms, he cannot consistently consider a total ban on handguns constitutional. Not so. A total ban on handguns is obviously not a total ban on all firearms but only on those of the handgun type. A statute that permitted the keeping and bearing of rifles of several sorts, or even of only one sort, but banned all other sorts of firearms could still permit the keeping and bearing of firearms in a way that one could view as consistent with the second amendment.

Indeed, an originalist could argue that a ban on all types of firearms except those specifically in existence and use by the militia at the time that the Bill of Rights became active (that is, no firearms that have come into existence since that time) was fully consistent with the second amendment. I don't see that the second amendment protects an individual right to RPGs; ground to air, shoulder-fired missiles; tanks; etc. After all, for a well regulated militia today, the keeping and bearing of arms of any kind are not necessary as they were at the time of the ratification because the organized militias are fully stocked with weapons of all kinds and they will gladly provide training on all of them.

So how could a ban on some particular gun types, even types that are in military use today, but not all gun types be unconstitutional? Or do some here contend that the second amendment DOES protect a private right to keep and bear RPGs; ground to air, shoulder-fired missiles; and tanks; etc, i. e. any and every type of modern weaponry?

At least as presented in the quote, his position seems entirely consistent.
3.5.2008 2:45am
rosignol (mail):
Indeed, an originalist could argue that a ban on all types of firearms except those specifically in existence and use by the militia at the time that the Bill of Rights became active (that is, no firearms that have come into existence since that time) was fully consistent with the second amendment.

Try this version and let me know if the logic still stands:

"Indeed, an originalist could argue that a ban on all types of printing devices except those specifically in existence and use by the press at the time that the Bill of Rights became active (that is, no printing devices that have come into existence since that time) was fully consistent with the first amendment."

Let me know if you think there's one judge in the US who would find that argument persuasive. Just one.
3.5.2008 2:59am
Craig R. Harmon (mail):

Let them take arms.


It is a long way to Tipperary and from the above quote to "ALL 'gun control laws' are REPUGNANT to the U.S. Constitution." This is what's known as a non sequitur.

After all, given the rate at which people are dying in this country from firearms, both criminal and accidental, we've come a long way from "a few lives lost in a century or two" to today.
3.5.2008 3:02am
Craig R. Harmon (mail):
I didn't say that a judge would find it persuasive, I said that an originalist could consistently argue it. By the way, I would not argue that position; I merely pointed out that it could be consistently argued.

And as long as the law did not outlaw opinions or points of view, however repugnant, how would a law limiting publication to the use of the types of presses in use at the time the BOR was ratified offend against the first amendment?

I suppose a judge would say that such a statute had no other purpose than to limit the length and/or frequency of publication and would find that such a statute did not fulfill even a rational review standard for governmental interest but from a strictly originalist point of view, as long as one is permitted to publish and is not restricted on the content of what is published, the textual requirements of the first amendment have been met. The first amendment is concerned with the proliferation of opinion, i. e., content, not means of proliferation beyond the ability to publish in some hard-copy form. As I always say, the first amendment guarantees one the right to speak on the street corner; it doesn't guarantee you a right to a weekly column in the New York Times. It doesn't even guarantee the New York Times -- or even a soap-box from which to speak on the corner.
3.5.2008 3:17am
Paul Milligan (mail) (www):
" A total ban on handguns is obviously not a total ban on all firearms but only on those of the handgun type. A statute that permitted the keeping and bearing of rifles of several sorts, or even of only one sort, but banned all other sorts of firearms could still permit the keeping and bearing of firearms in a way that one could view as consistent with the second amendment."

Crap. Utter crap. By that interpretation, as long as a state allowed ownership of muzzle-loading flintlock blunderbusses, the 2nd would be satisfied.

Which part of 'SHALL NOT BE INFRINGED' escapes you ?

Under the 1st Amendment, would you posit that as long as the government allows you to say the words ' Bawana ha dinga' whenver you want, your right to free speech has been preserved ?
3.5.2008 3:25am
Craig R. Harmon (mail):
To clarify, I do think that such restrictions on the press are contrary to the best interest of the nation but, again, the first amendment guarantees free speech and press in the sense that it is not to be restricted in content but even that's not how judges have ever read the first amendment. After all, one who shouted "Fire!" in a crowded theater, causing a panic in which hundreds are killed or injured would find the first amendment to be of no protection at all, nor would one who wrote libel against you nor one who advertized a drug that could enhance "male performance" when it does no such thing, based upon non-existent research invented by the marketers of said drug nor one who shouted "Lynch the ['n' word]!" to a bunch of good old boys but then refrained from any active participation in the ensuing lyinching, nor one who published location and movement of one's troops during war-time, etc.

Freedom of speech and press are about as free from restriction today as any enumerated individual right but it would be wrong to therefore argue that all laws restricting speech are repugnant to the United States Constitution.
3.5.2008 3:32am
Craig R. Harmon (mail):

Under the 1st Amendment, would you posit that as long as the government allows you to say the words ' Bawana ha dinga' whenver you want, your right to free speech has been preserved ?


Not so. I specifically stated, "as long as the law did not outlaw opinions or points of view, however repugnant", free speech would be preserved. Your analogy is invalid. I said that restrictions on means would be constitutional, not on contend, barring the sorts of non protected speech that I mentioned above. You are confusing means of publication with content published. Category error.
3.5.2008 3:37am
Craig R. Harmon (mail):
After all, even your means of exercising your right of free speech can be constitutionally restricted, even if you are speaking on a street corner. Try exercising your free speech right in a residential zone at two in the morning using a bull-horn and see if the law can't take your bull-horn away. I think they could. Whereas, as long as you weren't shouting obnoxiously but merely expounding in a normal voice, even a residential zone at two in the morning would likely be constitutionally protected.
3.5.2008 3:44am
Craig R. Harmon (mail):

Which part of 'SHALL NOT BE INFRINGED' escapes you ?


No part but, on the other hand, "Congress shall make no laws" in the first amendment hasn't stopped Congress from making laws that abridge freedom of speech or press, even with regards to content. So then, the part I don't understand is, why you think that "shall not be infringed" means something different when speaking of arms, which are much more dangerous than speech, after all, than "Congress shall make no law" means when speaking of speech or press. Both are ideals that have, their textual plain-speaking to the contrary aside, never been interpreted to mean that governments cannot make laws restricting either arms or speeh.
3.5.2008 3:58am
Elliot (mail):
It doesn't really seem like a flip-flop if he didn't have a well thought out position previously staked out. Personally, I know that as I learn more about a topic, it is not uncommon for my position to change from where I stood originally.
3.5.2008 4:34am
A. Zarkov (mail):
“No part but, on the other hand, "Congress shall make no laws" in the first amendment hasn't stopped Congress from making laws that abridge freedom of speech or press, even with regards to content.”

Laws restricting free speech are few and far between, and almost never include prior restraint. On the other hand, banning handguns does seem like prior restraint on a broad class of “arms.” Now if Congress were to regulate a new and exotic handgun, (say one that fired bullets that acted like little guided missiles) on the grounds that such a weapon was extraordinarily dangerous, I could see a possible exception.
3.5.2008 6:12am
Sam Hall (mail):
Craig R. Harmon said: "So then, the part I don't understand is, why you think that "shall not be infringed" means something different when speaking of arms, which are much more dangerous than speech, after all, than "Congress shall make no law" means when speaking of speech or press."

The New York Times with their "assault" press is far more dangerous to the nation than somebody with a gun.
3.5.2008 7:07am
Brett Bellmore:
Back to Tribe, we're talking about an academic who spent years authoritatively opining on the 2nd amendment's meaning, and then admitted that he'd never bothered to examine any of evidence. (Only looked at it when he set out to write the definitive refutation of the individual rights position.)

We're talking about a known plagiarist, who had to cancel release of the latest volume in his constitutional law series, once he was caught, and knew people would be closely examining it.

In other words, a hack, and dishonest. I wouldn't rule out the possibility that he was attempting to get into a good position to sabotage the Heller case. To feed D.C.'s counsel inside information, and Heller's counsel false assurances that the liberal justices were falling in line.

Pulling off something like that would put him right back on the liberal cocktail party circuit, maybe get him a prestigious position with a liberal foundation. The puzzling thing is that he'd think for a moment Gura and co would risk involving him in their case. I guess hacks are better at looking clever, than being clever.
3.5.2008 7:33am
Michael B (mail):
What was it Claude Rains said? Something about being shocked, just prior to demanding, without embarrassment, his "winnings" for the evening?
3.5.2008 7:39am
Sam Draper (mail):
The militia act of 1792 required some people to procure rifles for themselves, and other to procure pistols (link: ). Pistols were certainly consided to be militia arms at the time of ratification.

The DC ban includes 1790s era black powder pistols, so regardless of technological change it is still unconstitutional.
3.5.2008 8:08am
Sam Draper (mail):
My link didn't work, but here is the url: http://www.constitution.org/mil/mil_act_1792.htm
3.5.2008 8:10am
ParatrooperJJ (mail):
He is in an ad for Obama. It is clear that he is looking to be a judge.
3.5.2008 8:23am
Happyshooter:
Yep, Obama offered him a judgeship. The democrats do stuff like this all the time, demanding complete public reversals on a position as a loyalty test.

Locally we had a GOP at the city level who wanted to be a state rep. His only really right position was being strongly pro-life. The GOP wouldn't let him run because the county club set had all the turns reserved for them.

The dems agreed to let him run, but as a loyalty test he had to writes letters to the papers saying how much he supported a woman's right to choose.

This is the same thing, writ larger. It also means that Tribe is a whore, which means both sides should act to keep him off the ebch since he cannot be trusted to act as he believes so long as something for him may be on the table.
3.5.2008 8:35am
PersonFromPorlock:
My comment to the WSJ:

Mr. Tribe has a Constitutional right to express his view; but by his own reasoning it would be permissible for government to forbid him to exercise that right in the specific form of an op-ed.
3.5.2008 9:09am
Carl Donath (mail):

Does this mean the Second Amendment protects the use of any weapons used by the military?


"Their swords, and every other terrible instrument of the soldier, are the birth right of an American. ... The unlimited power of the sword is not in the hands of either the federal or the state governments, but, where I trust in God it will ever remain, in the hands of the people." -- Tench Coxe, noted federalist and friend of James Madison, writing in defense of the proposed Constitution, in the Pennsylvania Gazette, Feb. 20, 1788

A true academic can change his mind, upon further reflection; I don't know why we just can't assume that this is what happened with Professor Tribe.

I read his article. There is no expressed substance to the change, just re-iteration of an BHO-type "yeah, it's an individual right" which is manifest as virtual prohibition. Many of his comments, in a short span, are in stark contrast with the plain wording of the 2nd Amendment, claiming to start with "individual right" but swinging right back 'round to collectivism.

- "nothing I have discovered or written supports an absolute right to possess the weapons of one's choice" vs. "arms ... shall not be infringed"
- "Under any plausible standard of review" vs. "shall not be infringed"
- "a legislature's choice to limit the citizenry to [arms] 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." vs. "shall not be infringed", plus all arms he indicates as prohibitable are the very kind needed by "a well-regulated militia"
- "Equally foolish would be a decision tilting to the other extreme and upholding the lower court's decision simply because the right to bear arms is ... a right that belongs to citizens as individuals." vs. "the right of the people to keep and bear arms shall not be infringed"
- "Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing." vs. "keep and bear", which does not include "brandish for stupid/criminal reasons"
- "it would transform a constitutional provision ... 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." vs. "Congress shall have power ... To exercise exclusive Legislation in all Cases whatsoever, over [Washington DC], and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." to wit: if you want Fort Knox type security, build a fort; such control only covers those places owned by the gov't, not private residences.
- "Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch." vs. Chicago is the next test case after DC.

And that's not all.
Basically, Tribe takes his reasoned position and then, in a very few paragraphs, uses handwaving to spin his position back to the standard poorly-considered collectivist view. The DC Circuit Court has already shredded this "new" position, and Tribe has so far failed to counter it appropriately.

Looks increasingly like his influential friends (BHO included, apparently) have made it clear he must publicly change his position, and he is choosing politics over principle.

Whatever changed Professor Tribe's mind, it wasn't reasoned reflection.
3.5.2008 9:30am
Serendipity:
I don't think his reasoning is at all as silly as most seem to. Here's the key passage:

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.


I don't think he's on record as saying every total handgun ban would be reasonable. I'd imagine that if a city government in a a rural town with a population of 750 decided to ban handguns, the issue would be quite different since this would not be a "densely populated area with augmentable urban violence." Maybe everyone here disagrees with me, but it doesn't seem as absurd on its face as people are making it out to be. It would be an extremely narrow holding if stated that way.
3.5.2008 9:38am
DJR:
Very classy of Heller's attorneys to attack Tribe's supposed change of heart rather than his arguments.
3.5.2008 9:52am
Carl Donath (mail):
how do you know so much about Professor Tribe? To have such deep insights, you must have studied him closely.

No, we simply read his op-ed, which reads very much like someone clearly unfamiliar with the topic trying to justify the position with a common form of poor reasoning.
Or do some here contend that the second amendment DOES protect a private right to keep and bear RPGs; ground to air, shoulder-fired missiles; and tanks; etc, i. e. any and every type of modern weaponry?

Yes, some here do. Justification?
1. The 2nd Amendment uses the concepts "arms" and "shall not be infringed" in the broadest terms possible without any hint to limitations thereon; the phrasing is plainly designed to be expansive, not limiting.
2. The subordinate clause to the 2ndA clarifies it as meaning "yes, even serious military arms."
3. Elswhere the Constitution discusses "Letters of Marque", which authorize what amounts to personal wars, which includes the implication and historical reference to private individuals and groups using privately-owned heavy weaponry (battleships primarily) to carry out Congressionally-authorized actions (ownership of such arms was presumptive, and not subject to authorization - no point of handing out a Letter of Marque to someone without the tools to act on it promptly).
given the rate at which people are dying in this country from firearms

Then by all means we should ban automobiles! they kill more people anually.
Try exercising your free speech right in a residential zone at two in the morning using a bull-horn and see if the law can't take your bull-horn away.
Red herring. More like: See if the law can't take your bull-horn because you MIGHT exercise your free speech right in a residential zone at two in the morning. THAT is exactly Mr. Heller's situation: he has done nothing wrong or objectionable, and there is absolutely no indication that he will, yet DC seeks to prohibit his possession of certain items anyway.
"Congress shall make no laws" in the first amendment hasn't stopped Congress from making laws that abridge freedom of speech or press
That a law has passed does not make it Constitutional. We have courts precisely to review existing laws and to overturn those repugnant to the Constitution.
It doesn't really seem like a flip-flop if he didn't have a well thought out position previously staked out.
The point is that Prof. Tribe DID have a VERY well-thought-out position on the subject, so much so that it put him at stark odds with where he wanted to be on the subject. This is indeed a "flip-flop" precisely because it takes him from a deeply reasoned position to the opposite _without_ any expression of why that reasoning changed.
3.5.2008 9:55am
Brett Bellmore:
First off, DC doesn't have, and didn't just have struck down, a "handgun ban", but instead a ban on any kind of functional firearm at all. The few people who could posess firearms at all had to keep them incapacitated.

Second, it would be a rather weird civil liberty which was posessed only by people living in rural areas.
3.5.2008 9:56am
Wineoceros (mail):

He is arguing not that a ban on all guns is consistent with the individual right in the Second Amendment, but that a ban on handguns is. I disagree with him, but it is not an absurd position to take that handguns don't qualify as a militia weapon.

Actually, that is quite absurd. A militia is a primarily infantry-based force, and sidearms have been common infantry weapons for about a century now.
3.5.2008 9:57am
DonP (mail):
"I disagree with him, but it is not an absurd position to take that handguns don't qualify as a militia weapon. "

Now you've gone and made my M9 and 1911A1 cry, darn you.
3.5.2008 10:02am
Carl Donath (mail):
Very classy of Heller's attorneys to attack Tribe's supposed change of heart rather than his arguments.
His new arguments have been vaporized by the DC Circuit Court's ruling, Heller's response befor SCOTUS, and by the host of amici briefs. There is nothing new in his WSJ op-ed, and nothing that hasn't been
3.5.2008 10:04am
Carl Donath (mail):
(not sure where the end of that post went)
...thoughly countered with solid Consitutional arguments. To attack his arguments would be to continue beating the stain where a horse used to be. Lacking any expressed deep reasoning on his part, we have to wonder what other motives he has for making such an abrupt and shallow about-face.
3.5.2008 10:08am
Wineoceros (mail):

"Indeed, an originalist could argue that a ban on all types of firearms except those specifically in existence and use by the militia at the time that the Bill of Rights became active (that is, no firearms that have come into existence since that time) was fully consistent with the second amendment."

Such an argument would not make one an originalist. It would make one a simpleton.
3.5.2008 10:09am
dcuser (mail):
This may come to a surprise to the academic types on VC, but advocates (and that's been at least half of Tribe's job description over the past few decades) very often volunteer to represent and argue for positions with which they disagree, or with which they only partially agree.

If they're retained, then they'll provide zealous advocacy, presenting the (defensible) arguments best calculated to win. If they're not retained, then they are free to revert to their role as citizen/academic/commentator, in which they give their opinion about the most correct interpretation.

This happens to me all the time. You don't really think that all lawyers think their clients are actually right about everything, do you? What we do (after screening out those whom we would refuse to represent because their views are either legally indefensible or morally reprehensible) is to provide zealous advocacy to those who retain us.

(And no, it doesn't matter whether the representation was going to be paid vs. pro bono. For instance, when lawyers take a criminal defense matter pro bono, we expect them to say their clients are innocent. But every criminal defense lawyer will admit that most of their clients have probably been guilty.)
3.5.2008 10:10am
Carl Donath (mail):
Originalists, like the authors of the Constitution, are interested in principles, not products - hence the dismissal of the "the 2ndA only protects muskets!" argument.
3.5.2008 10:21am
Tony Tutins (mail):
Under the Goldilocks gun control approach, while handguns may be too small, surely rifles are too big for household self-defense, with their "high-powered" cartridges capable of causing injury miles away from the home, and their long barrels susceptible to being grabbed by intruders, wresting the guns away from homeowners. That would leave shotguns with barrels measuring 18.0 and 18.5 inches, but I could imagine someone arguing that "their uncontrollable spray of projectiles" made them especially hazardous.

Hang on to your Daisy Red Ryder BB guns folks, and invest in a really good slingshot.
3.5.2008 10:23am
DJR:
Carl,

If there is no need to respond to his arguments, then the classy thing would be not to say anything at all. The ad hominem reflects more on Heller's attorneys than it does on Tribe.
3.5.2008 10:26am
WineOceros (mail):

"Hang on to your Daisy Red Ryder BB guns folks, and invest in a really good slingshot."

That's been my approach...although mine isn't a Red Ryder, and it fires a whole bunch of BBs all at the same time.
3.5.2008 10:29am
cboldt (mail):
The test shouldn't turn on "concealability" either. Trenchcoats can well conceal a longarm.
.
I've really enjoyed reading the posts on this thread. Quite a few LOL moments, great history lessons about the founding of the USofA, and on reflection of where we are compared with where "we" were (200, or even 100 years ago), a sense of incredible erosion of freedom. Perhaps appropriate, as freedom goes hand in hand with responsibility.
3.5.2008 10:32am
Tony Tutins (mail):

If they're retained, then they'll provide zealous advocacy, presenting the (defensible) arguments best calculated to win.


I would like to believe this, but look at this exchange from the same-sex marriage oral argument post. "Public Defender" argues that even attorneys paid to represent the state "have no duty to argue that [a statute] was fair, right, or moral;" implying that their lack of enthusiasm arguing a cause was excusable.

A Commenter
By contrast, the main counsel for the state and the governor, both very fine lawyers, seemed unenthusiastic about their case. The governor's counsel began his presentation by asking whether the justices had any questions.

PD:
I think this is common. Many government lawyers are see anti-gay laws the same way they would look at anti-Jewish laws. I once saw a prosecutor concede that she thought an anti-gay statute was unconstitutional. She basically said she was only there in case the court had questions. I thought that went too far.

Here, the government lawyers had a duty to argue that the ban was legally correct, but they had no duty to argue that it was fair, right, or moral.
3.5.2008 10:35am
cboldt (mail):
-- advocates (and that's been at least half of Tribe's job description over the past few decades) very often volunteer to represent and argue for positions with which they disagree --
.
True, that. But not supposed to be true, that, when the capable advocate voluntarily adopts the role of "amicus."
3.5.2008 10:38am
Tony Tutins (mail):

Advocates (half of Tribe's job description over the past few decades) very often volunteer to represent and argue for positions with which they disagree

It just occurred to me. Could Tribe have secretly wanted Bush to be President, but represented Gore merely to level the playing field?
3.5.2008 10:43am
ech:
And the "nukes and poison gas" meme is a pretty pathetic ad absurdum argument that I have heard from way too many con law professors. If you can't figure out a way to ban nukes in a way that satisfies strict scrutiny, you need to cut back on the lead in your diet.


I know of one, and IANAL. The US has entered into treaties to ban chemical and biological weapons, therefore it could extend to the states and individuals under Article VI. In addition, we have treaties regulating the number and type of nuclear weapons we have and how they are handled. So, you could say that the treaties we have entered into would put limits on civilian posession of weapons.

"Indeed, an originalist could argue that a ban on all types of firearms except those specifically in existence and use by the militia at the time that the Bill of Rights became active (that is, no firearms that have come into existence since that time) was fully consistent with the second amendment."


Such an argument would not make one an originalist. It would make one a simpleton.


Or holding to an Amish influenced view of the law. :-)
3.5.2008 10:45am
DJR:
By the way, a democratic President would not be very smart to appoint Tribe, who will be 69 years old in 2009, to the Supreme Court. Tribe knows this.
3.5.2008 10:48am
gattsuru (mail) (www):
Harmon and Newman
So how could a ban on some particular gun types, even types that are in military use today, but not all gun types be unconstitutional? Or do some here contend that the second amendment DOES protect a private right to keep and bear RPGs; ground to air, shoulder-fired missiles; and tanks; etc, i. e. any and every type of modern weaponry?


Just as the First amendment is capable of being constitutionally broken when a law passes strict scrutiny, no reading of the second amendment is going to recognize a higher standard. If a statute can be found to stem from a compelling government interested, be narrowly tailored to its goal, and be no more restrictive than necessary, it's still going to remain law -- and that suggests that the Second Amendment will be found to use strict scrutiny rather than intermediate scrutiny or rational basis.

A handgun ban painfully obviously do not met the 'narrowly tailored' and 'minimally restrictive' tiers of a strict scrutiny test : although there is a compelling governmental interest (preventing harmful handgun usage), it's neither minimally restrictive nor narrowly tailored when it also kills a pretty sweeping majority of gun owners.
It'd be logical for that to fail even rational basis review : banning household ownership of firearms by law-abiding citizens does not seem, to me, a rather rationally connected method for preventing murder with handguns, at least unjustifiable homicide.

Some of those weapons you listed also count as ordinance, not arms : I'm not certain what the founding fathers would have called an RPG, but the closest analogues to tanks and ground-to-air missiles were certainly ordinance rather than arms. A ban on such items would probably meet strict or intermediate scrutiny, due to the very low market penetration and fairly closely tailored restrictions.
That's not to say I think they need to be banned, or should be (they currently are not, simply highly regulated in the case of missiles and not much in the case of tanks), but that such a ban would probably pass constitutional muster.
3.5.2008 10:49am
Carl Donath (mail):
If there is no need to respond to his arguments, then the classy thing would be not to say anything at all.

The real issue at this point isn't his arguments per se, but the about-face they express without apparent intellectual reasoning. Why the abrupt change? Why no justification thereof? Why wording consistent with newbies and not intellectual leaders?
And yes, that warrants a response. Sometimes the choice of messenger is indeed of more interest than the message. The message in this case is well-understood: the standard "collectivism veiled by an individuallist facade" and needs little re-re-re-re-re-hashing. What is curious is WHY this _particular_ person is bringing a message contrary to his previous, and far more reasoned, view ... and why NOW. That ties with BHO are being revealed raises serious questions about motivation.
3.5.2008 10:49am
Carl Donath (mail):
ordinance, not arms

Recently I was perusing a collection of US Army publications. The M1 Garand, along with other similar items, was described very plainly as "ordnance".

If there is a differentiation between the two, it seems between "rock chucker" and "edged/blunt object", not "light" vs. "heavy".
3.5.2008 10:54am
33yearprof:
Whatever changed Professor Tribe's mind, it wasn't reasoned reflection.


In a nutshell.

Pistols, even crude repeaters, were in existence or on the drawing board in 1791. Look here:
Pistols, Crime, and Public Safety in Early America
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1081403
3.5.2008 10:59am
Carl Donath (mail):
Long before 1776, Leonardo da Vinci had conceived of, at least in basic essence if not exact implementation, most 20th-Century arms. Surely the Founding Fathers, being well-educated intellectuals, were aware of these ... so the "they never thought of such things" argument doesn't fly. They were interested in principles, not products.
3.5.2008 11:32am
Cheburashka (mail):
Congratulations - you've uncovered the startling fact that Tribe is a lawyer.
3.5.2008 11:57am
ruralcounsel (mail) (www):
Prof. Tribe is a brilliant academic, and as such his finding that there is an individual 2nd amendment right is promising.

I don't know his upbringing, but I'd sure hazard a guess it was in a major metropolitan area. His observation that a total ban on handguns is a reasonable restriction isn't due any deference. That's the kind of non-real world nonsense we have come to expect from so many of the ivory towers. (Sorry academics! The truth hurts.) What is reasonable is a totally subjective decision ... and a large number of Americans just out and out disagree with Tribe on that.

I enjoyed the post that said as per Tribe, there was a right to abortion, but that localities had a reasonable right to restrict it includes a total ban. Or that the freedom of speech included everything except verbs.

The fundamental distinction always has been, is, and will continue to be, people who do not trust government with a monopoly on effective means of inflicitng deadly physical force, and those that do. The reasons for wanting to inflict deadly physical force are secondary. The mindsets are so diametrically opposed, that this is a third rail issue for the entire country.
3.5.2008 11:58am
Dave in Alexandria (mail):
IMO a line must be drawn between “arms” and “destructive devices”. Possession of arms is protected by the 2A; possession of destructive devices is not. Obvious examples of destructive devices are bombs, mines, explosive projectiles, RPGs, poison gas, rockets, mortars, bazookas, etc. Obvious examples of arms are rifles, pistols and shotguns. Where I would draw the line is here: “If you can kill more than one person with a single pull of the trigger, then it is a destructive device, and may be regulated, licensed, or banned from civilian possession.”

But there is a gray area where firearms and destructive devices meet. And in that gray area are things like machine guns and sawed-off shotguns. Personally, I would love to own a full-auto Thompson or Uzi, but I could never afford to feed it. As Clint Smith (I think) said: “A machine gun is just a good way to turn money into noise.” So I do own several semi-automatic, magazine-fed military weapons (American ones, of course!), and I am content with that. Some full-auto weapons are not worth owning, IMO, like the Greasegun from WW2, because they’re just too butt-ugly. But a Thompson? Ahhhh!

It seems to me that a sawed-off double-barrelled 12-gauge shotgun is like a small Claymore mine. All it lacks is the inscription that is on every Claymore: “Front toward enemy.” And I have no problem with regulating Claymores. Admittedly this creates a problem for some grouse hunters who want to have very short-barrelled shotguns for hunting.

I have no problem with a guy who has a farm, owning, for example, a 20-mm Solothurn anti-tank gun. No problemo, he has lots of room to have fun and I envy him. But then what if that guy moves downtown? Can he take his Solothurn with him? We wouldn’t let him take a horse or cow when he moves into an urban townhouse. I guess the Solothurn itself isn’t the problem so much as its high-explosive ammunition, which would be impossible to store safely in an urban setting.

The BATF has these absurd rules for defining a machine gun. They have literally prosecuted and convicted people for possession of a shoelace, because the defendant had figured out how to use the shoelace to rig a semi-automatic rifle for full-automatic fire. Also, any weapon which was produced originally as a machine gun is always a machine gun, even if it has been expertly and permanently modified to prevent full-auto fire. The M-14 rifle for example. And the ridiculous “foreign-made parts count” system for distinguishing a domestic rifle from an imported one. Come on!

In my ideal world I would like to see the repeal of the 1986 Lautenberg Amendment, to resume licensing of new machine guns by the Treasury Dept. And the repeal of the absurd “points” import system for rifles and pistols. And the legal ownership of “silencers” or sound suppressors.

If conditions in the U.S. ever dictate a need for civilian ownership of destructive devices, citizens can just steal them from the military. No one will care, because by that time the fabric of society will have deteriorated to the point of open rebellion. But we will need our own small arms to keep the tyrants at bay until we can get organized.

In Tribe’s book, his conclusion was that individual adult American citizens could not be deprived of their small arms without a compelling reason, and only after a public proceeding of some kind (trial, hearing, etc.) That’s the rough equivalent to “prior restraint” under the First Amendment: the government can actually stop the New York Times from publishing, for 24 hours, material which it considers damaging to the public interest. After that, unless a court extends the injunction, it’s “Publish and be damned,” as Dan Rather used to say.

In the same way, if I go in to buy a gun, the “Brady” check has 24 hours to disqualify me, after that I am approved. I don’t see how Tribe approves “bans” in his WSJ article, because in his book guns can’t be banned because that would require a separate trial for every person banned.

The Second Amendment should have the same sort of expanded latitude that the other Articles have acquired for the rights of individuals and defendants, the Fourth for example (just one word: Miranda.) Or the First: (Sullivan vs. Times).

None of the Articles of the BoR are inviolate: the First Amendment is infringed countless times every day by copyright laws, perjury laws and fraud laws. If I print up a copy of the latest Harry Potter book in my basement, I have violated copyright law. Copyright law is, most of us think, a reasonable infringement on the First Amendment. But if I keep my copy in my home and only read it myself, are the cops going to break down my door and arrest me? If not, why not? They do this with gun owners, why not with book owners?

Some people might argue that guns are weapons and are lethal, while books are not. But the Founders already knew that when they composed, passed and ratified the Second Amendment. So to propose that guns be more tightly regulated than, say, books, is to infringe on the right at the very point where the Founders intended to protect it. Of course guns are lethal! That’s why they’re protected!

What we’re talking about is simple possession of firearms. We’re not talking about brandishing, or shooting, or threatening or any other usage, we’re just talking about ownership, possession, “keeping and bearing”.

Trouble is, too many Americans are so infantile that they find the very idea of private ownership of arms to be “threatening” in the abstract.

Tough.

(OK, flame on.)
3.5.2008 12:28pm
Ed Budkist (mail):
This is Obama's nonsensical position--Tribe is just giving him cover. It's Tribe's last chance to get on the Court.

More interesting is how some smart people fall for this and claim Obama is not a gun-banner through and through, which he is.
3.5.2008 12:42pm
gab:
What is the most commonly misspelled word in the English language? Judgment. Only one "e."
3.5.2008 12:52pm
Tony Tutins (mail):

What is the most commonly misspelled word in the English language? Judgment. Only one "e."

"Judgement" is properly spelled in the English language; however "judgment" is properly spelled in the American language.
3.5.2008 12:55pm
Carl Donath (mail):
The 2ndA was written so that the people would, collectively, have the tools &power needed to repel ANY enemy force, foriegn or domestic. Since our enemies will not suffer any self-imposed restrictions on firepower, neither should we.

Your concern, and arbitrary line-drawing, is a typical naieve (I don't mean that insultingly) response to the "but somebody could get hurt!" idea. An understanding of what is involved needs be developed.

Most arms (a term covering ALL such items) have minimal damage if accidentally discharged, relative to (say) a dropped lit match or an automobile accident: serious personal harm is unlikely, and (pardon me for saying this) is a socially acceptable risk. Likewise, a Solothurn or M4 will in all likelyhood not do anything harmful (true accidental discharges are exceedingly rare) unless someone chooses to do so deliberately - at which point few laws would inhibit someone so inclined.

Constitutional regulation of rights is properly and ultimately a matter of _facilitation_, not prohibition. Regulations on driving are created to facilitate people getting to where they want to go; they may grumble about something, but that is usually trivial compared to how bad things would be without regulation (stay in your lane, drive on right side, stop at stop lights/signs, use turn signals, accuracy in reporting gallons &octane of gas, etc.). The "regulation" of arms usually focuses on unfounded fears of accidents &misuse, instead of on facilitating a purpose beneficial to both individual and community.

To that thought, around 1776 community armories were common - not to restrict anyone from accessing arms, but as a safe place for storage lest large amounts of blackpowder suddenly detonate. To a modern equivalent, it may be reasonable (thru a strict scrutiny analysis) to require one's claymores be stored in a communal safe storage, or require such storage facilities at home,
to prevent broader harm should something "go off". This in no way justifies prohibiting one from owning, and properly using, such items.

To the thread, Mr. Heller simply wants to defend himself at home. There is no reason to think anything unduly harmful will come of it. I'd like an M4 and a Barrett 82; likewise, they will be stored such that no harm would come in the extremely unlike chance that something "went wrong". If you want an RPG and can store it safely, ditto. These cases pass any test, strict scrutiny or reasonable review, and thus no prohibition is justified.

My summary on the concept:
The only Constitutional restrictions on RKBA involve situations where abuse, active or probable, of the right would justify others making use of their RKBA in return. Own what you want, just don't point it at me.
3.5.2008 1:03pm
Swen Swenson (mail) (www):
I don't see that the second amendment protects an individual right to RPGs; ground to air, shoulder-fired missiles; tanks; etc.
So.. Does that mean that Ahnold should give up his tank? ,8^}
So how could a ban on some particular gun types, even types that are in military use today, but not all gun types be unconstitutional? Or do some here contend that the second amendment DOES protect a private right to keep and bear RPGs; ground to air, shoulder-fired missiles; and tanks; etc, i. e. any and every type of modern weaponry?
For the sake of argument, yes, banning all handguns might be allowed under the 2nd amendment. But we should still fight such measures wherever they appear. We're on the proverbial slippery slope where destructive devices (such as RPGs and shoulder-fired missiles), fully-automatic arms, sawed-off rifles and shotguns, mail-order guns, cheap imported handguns and, for a time, guns that look like assault weapons, have been banned. The gun banners are smart enough to know that they can't ban all guns at once, so they try to ban them one particular firearm type at a time.

If banning handguns doesn't violate the 2nd amendment because it's only a ban on one particular firearm type, then surely banning "sniper rifles" (any high-powered rifle with a scope) is permissible. Then they can ban "cop-killer guns" (any firearm capable of piercing a protective vest, which most hunting arms can). Then any firearm powerful enough to harm anyone, as has been proposed by Amitai Etzioni. None of these bans would ban all firearms. All of these bans would be permissible because each only bans some particular firearm types. Yet, in the end we'd be arguing about whether we should be allowed to keep our pellet guns, because 'you could put someone's eye out!' Where would that leave the 2nd amendment?

So yes, for the sake of argument, I will argue that the 2nd amendment does protect our right to keep and bear RPGs, missiles, tanks, and even nuclear weapons, and that our government unconstitutionally infringes on that right. However, we've a long way to push back before I can even buy that 1921 Thompson I crave, so I wouldn't worry about people mail-ordering nukes any time soon, hmm?
3.5.2008 1:53pm
zippypinhead:
There are only two possibilities here, IMHO -- either Tribe is engaging in some impressive mental gymnastics to get to a result that his "gut" tells him is right, or he's shilling for somebody.

IF we assume the former, there are two ways the Court could get to Tribe's position:

1. Abrogate the Miller "militia" test for defining protected arms, since handguns have met that test since shortly after the invention of the flintlock at the latest (I wouldn't be surprised if the Miller test was on at least a few Justices' minds after ruling in favor of an individual rights theory, if for no other reason than gut-level discomfort at issuing a ruling that would jeopardize existing regulation of NFA firearms and destructive devices); and/or

2. Reject both respondents' and the Solicitor General's articulations of the proper standard of review, instead adopting a deferential "reasonable basis" standard. This could be done without appearing *totally* dishonest by holding that the individual, non-militia right exists but is not "fundamental," even though it is enumerated, perhaps by distinguishing between the level of protection available for "militia" exercise versus "personal" exercise of Second Amendment rights (I personally have a hard time figuring out how one would articulate that distinction without either causing gales of laughter or severe stomach pains among most Constitutional scholars).

OR is Tribe simply shilling for somebody? I hate most conspiracy theories, but sometimes the obvious explanation is actually the correct one. It is striking that Tribe's new position is squarely in line with the Second Amendment views recently advanced by his former student, President-elect-almost Obama. Tribe's too old for a S.Ct. appointment, but not for a nice pre-retirement gig as SG or AG in the first Obama Administration. Although if he intends to keep selling his legal positions in exchange for that sort of explicit quid pro quo, he'd better study 18 U.S.C. §201(b)(2) before he gets nominated for his new Federal job.

But let's assume for a minute that Tribe is actually a bit more altruistic in his shilling: What if the thinking is that Obama's likely to take some hits in purple states in the general election over his anything-goes firearms regulation position, particularly if the Court hands down a strongly pro-individual rights ruling in Heller that ends up making Obama look rather silly in hindsight? Wouldn't you want to enlist a gray eminence supporter to provide some cover for your position, so you can say "I know the current right-wing Justices disagreed with me, but if such well-respected, pro-Second Amendment scholars as Professor Tribe think like I do, then there is good legal justification for my position." And when you're speechifying at the Brady Campaign annual convention, you even have the option of going further and announcing you'll appoint enlightened scholars to the Court "who think like Professor Tribe." And the news cameras get to cut to shots of the standing ovation from the crowd.

So, is Tribe being honest but cravenly result-oriented, or is he just shilling? And if he's shilling, is it for himself or his beloved former student? Hmmm...
3.5.2008 2:16pm
Jackson Pollock (mail):
Orin Kerr,

Have you ever offered to represent a client in a high-stakes Supreme Court case that would cement your reputation as a great Supreme Court litigator after years of losses, been turned down, and, upon reflection, written a feeble-logicked 800-word op-ed that trashed your putative client's position and just happened to coincide the public statements of a Presidential candidate who was once your student and research assistant?
3.5.2008 2:22pm
Fen:
A statute that permitted the keeping and bearing of rifles of several sorts, or even of only one sort, but banned all other sorts of firearms could still permit the keeping and bearing of firearms in a way that one could view as consistent with the second amendment.

Same for religion. A statute that permitted the free exercise of Catholicism, but banned all other sorts of religions could still permit the free exercise of religion in a way that one could view as consistent with the first amendment.

/s
3.5.2008 2:37pm
OrinKerr:
Jackson Pollock writes:
Orin Kerr,

Have you ever offered to represent a client in a high-stakes Supreme Court case that would cement your reputation as a great Supreme Court litigator after years of losses, been turned down, and, upon reflection, written a feeble-logicked 800-word op-ed that trashed your putative client's position and just happened to coincide the public statements of a Presidential candidate who was once your student and research assistant?
I have never written anything "feelbe-logicked", so the answer is "no." Pleas let me know if you have any more questions.
3.5.2008 2:44pm
WineOceros (mail):

Same for religion. A statute that permitted the free exercise of Catholicism, but banned all other sorts of religions could still permit the free exercise of religion in a way that one could view as consistent with the first amendment.

Besides, I'm sure they'd only ban the religions that the framers didn't anticipate.
3.5.2008 2:44pm
GunShowOnTheNet.com (mail) (www):
The Right has NOTHING to do with the "militia", nor the arms used BY the "militia". It is a stand alone Natural Right entirely complete in and of itself. To Wit:

Consider the PRE-EXISTENT NATURAL RIGHT of the British-American 'subject', as explained by a very knowledgeable and well known authority;

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. &M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

- William Blackstone, 1 Commentaries on the Laws of England 136, 1765–1769.

Next, let us give our attention to how the new American Citizen's Right was dramatically improved;

"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government...."

"....This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

"...In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty..."

- St. George Tucker, Blackstone's Commentaries, (1803).

The Chief Justice confirms here:

"Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers."

- John Marshall, U.S. Supreme Court Chief Justice. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]

The Right is in NO way contingent upon being in the "militisa". As shown again here, in the preamble to the Bill of Rights itself:

"The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further DECLARATORY and RESTRICTIVE clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;

"Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:

...Amendment II

DECLARATORY; (Common Defense)

"A well regulated militia, being necessary to the security of a free state,"

RESTRICTIVE; (Self-Defense/Preservation, The First Law of Nature).

"the right of the people to keep and bear arms, shall not be infringed."
3.5.2008 2:56pm
jxr (mail):
Isn't Tribe's position the same as saying that a complete ban on glossy magazines passes "any plausible standard of review" of the "freedom of the press" as long as newspapers and books are allowed?

He admits "people" are individuals. He doesn't contest "not infringed". No one denies that handguns are "arms". and the DC statute bans keep[ing] them in one's home.

One can easily argue that glossy magazines are problematic (cf. Larry Flynt) and ban them all (content neutral) and doing so passes "any plausible standard of review" for Prof. Tribe.
3.5.2008 2:58pm
Tony Tutins (mail):

I'm sure they'd only ban the religions that the framers didn't anticipate.

No young Mormons riding their mountain bikes through my neighborhood; no Jehovah's Witnesses ringing my doorbell on a Saturday morning; no Christian Science Monitor, no Seventh Day Adventists pushing creationism, no Elron with his e-meter, no snakehandling churches, no Aimee Semple McPherson ... would the country be better off or worse?
3.5.2008 3:01pm
GunShowOnTheNet.com (mail) (www):
The following is a case concerning the infamous "Alien and Sedition Acts". It describes the intent and extent of the law concerning the First Amendment.
Of course the same principles apply equally to the Second:
A CHARGE to the GRAND JURIES, "Thus the will of individuals is still left free; the abuse only of that free will is the subject of legal punishment", 1799
3.5.2008 3:04pm
Brett Bellmore:

such well-respected, pro-Second Amendment scholars as Professor Tribe


I'm at a loss as to how you gain cover from reciting a phrase which would cause the eyes of the people you're trying to gain cover with to roll. Tribe is NOT accounted among 2nd amendment activists as a "pro-Second amendment scholar". At best he's occasionally given as an example of an anti-gunner who was forced screaming and kicking by the weight of evidence to admit that the 2nd amendment means something.

And he just lost even that status.
3.5.2008 3:06pm
zippypinhead:

'such well-respected, pro-Second Amendment scholars as Professor Tribe'

I'm at a loss as to how you gain cover from reciting a phrase which would cause the eyes of the people you're trying to gain cover with to roll. Tribe is NOT accounted among 2nd amendment activists as a "pro-Second amendment scholar". At best he's occasionally given as an example of an anti-gunner who was forced screaming and kicking by the weight of evidence to admit that the 2nd amendment means something.

Exactly. But then again, delivered in Obama's dulcet tones, it almost sounds convincing -- at least to the uninitiated, or the true believers. At minimum Tribe just gave Obama a 'scholarly' source to cite when inevitably he gets called on his Second Amendment position. Whether Tribe did that because he's trying to curry favor with a future Obama administration, or because he really believes what he said, remains to be seen...
3.5.2008 3:29pm
x (mail):
Also misspelled "ordnance" not to be confused with "ordinance."

Dave in Alexandria, you hunt grouse? Ever shoot the bark off a tree?
3.5.2008 3:30pm
Brett:
Very classy of Heller's attorneys to attack Tribe's supposed change of heart rather than his arguments.


I'd be happy to attack Tribe's argument if he'd actually made one. However, where I'm from an "argument" consists of more than a conclusory statement unsupported by actual analysis, and unfortunately that's what Tribe's op-ed amounts to.
3.5.2008 3:46pm
Brett Bellmore:

it almost sounds convincing -- at least to the uninitiated, or the true believers.


Um, yes: Tribe just gave Obama cover among people he doesn't need cover among. Does not strike me as an especially valuable service. The main group this exercise will effect are anti-gun 'civil libertarians' who want to feel comfortable while being hypocrites. I suspect Obama has that demographic locked up already.

I suppose there's some influence at the margins, but I don't expect it to be great. Tribe sold himself very cheaply.
3.5.2008 3:58pm
dcuser (mail):

Besides, I'm sure they'd only ban the religions that the framers didn't anticipate.


Actually, Justice Scalia came close to that position in his dissent in the 2005 Ten Commandments case, where he basically said that the founders only envisioned and cared about protecting monotheistic religions that believe in an omnipotent god.
3.5.2008 4:01pm
WineOceros (mail):

"Actually, Justice Scalia came close to that position in his dissent in the 2005 Ten Commandments case, where he basically said that the founders only envisioned and cared about protecting monotheistic religions that believe in an omnipotent god."

Actually, that's not at all what he said. His conclusions about monotheism vs. polytheism (or atheism, or "non-concerned-deity"ism) were with regard to the observation of religious tradition in the public sphere. In fact, he specifically said that...

"Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. See ante, at 19; see also Van Orden, ante, at 11-13 (STEVENS, J., dissenting). That is indeed a valid principle where public aid or assistance to religion is concerned, see Zelman v. Simmons-Harris, 536 U. S. 639, 652 (2002), or where the free exercise of religion is at issue"
3.5.2008 4:16pm
Turk Turon (mail):
I tried hunting grouse a couple of times, in the GW Nat'l Forest, Elizabeth Furnace area, but never shot either a tree or a grouse. It's hard work and good exercise, and feels good even coming home empty-handed, as Ortega y Gasset (I think) said.
3.5.2008 4:22pm
Jackson Pollock (mail):
Orin Kerr writes:


I have never written anything "feeble-logicked", so the answer is "no." Please let me know if you have any more questions.


Of course you haven't, Orin. But Laurence Tribe wrote this feeble-logick'd op-ed, and Laurence Tribe does have a terrible win/loss ratio before the Supreme Court, and Laurence Tribe does want to be on the Supreme Court and did change his public pronouncements to match those of his former research assistant, Barack Obama, the frontrunner for the Democratic nomination in what looks to be a Democratic year. So while it makes perfect sense for an intelligent, ethical former Supreme Court clerk who pens academic articles that are on the cutting edge of the law to reason that true academics may innocently change their mind, it is very unlikely that Laurence Tribe the Proven Plagiarist is as ethical and intelligent as Orin Kerr. Now, that's my opinion, I suppose, but you are free to disagree.
3.5.2008 5:08pm
wuzzagrunt (mail):

Brett Bellmore wrote:

it almost sounds convincing — at least to the uninitiated, or the true believers.

Um, yes: Tribe just gave Obama cover among people he doesn't need cover among. Does not strike me as an especially valuable service. The main group this exercise will effect are anti-gun 'civil libertarians' who want to feel comfortable while being hypocrites. I suspect Obama has that demographic locked up already.

I suppose there's some influence at the margins, but I don't expect it to be great. Tribe sold himself very cheaply.


This could give Obama cover with sportsman, who are inclined to vote Democrat, but who are concerned about the prohibitionist tendencies of candidates like Barack and Hill'. It's probably true that informed voters who are willing to believe the fiction that there is a "legitimate sporting purpose" clause, contained in the 2nd Amendment, are probably not a huge voting block. However, in a tightly contested race, it only takes a few chumps voters, in a few key states, to fall for it agree.
3.5.2008 7:23pm
Brett Bellmore:
I don't think this is going to help him much with sportsmen, not when they learn of Obama's plan to ban all semi-automatic firearms. Frankly, Obama has a record of supporting gun control measures even Chuck Schumer would shrink from, if only out of political good sense.

Honestly, I think all Tribe is doing is flailing about in a futile effort to make himself relevant again, after becoming pretty much a nobody in the wake of the plagiarism revelations. It's more than a little pathetic.
3.5.2008 8:11pm
Craig R. Harmon (mail):
I want to thank everyone who has interacted with my comments. This is the way I learn: I advance a point of view and arguments in support thereof amidst a group of intelligent and knowledgeable people with expertise I lack and see what they make of it. Some of your responses I find compelling, some less so but I appreciate the opportunity your comments have provided me to rethink my position.

There are far too many to go through and respond to each and I still have some thinking to do so I'll just repeat, thanks to you all.
3.5.2008 8:47pm
Turk Turon (mail):
Tribe's true findings are in his textbook.

His newspaper columns are just dicta.
3.5.2008 9:55pm
Clayton E. Cramer (mail) (www):

I disagree with him, but it is not an absurd position to take that handguns don't qualify as a militia weapon.
The Militia Act of 1792 specifically required those assigned as cavalry to have handguns. They weren't optional.
3.6.2008 12:55am
Thoughtful (mail):
My congratulations to Orin Kerr for his willingness to think the best of others, excepting, of course, people who express opinions on Volokh.com...
3.6.2008 8:46am
Turk Turon (mail):
From the NYT, May 30, 1999:

"Here, for example, is a comment made by one prominent constitutional expert in an interview last week: "It becomes impossible to deny that some right to bear arms is among the rights of American citizens." Charlton Heston? No. It was Laurence H. Tribe, the influential liberal constitutional law expert at Harvard Law School who personally favors gun control."
3.6.2008 1:19pm
Bushmaster1313:
Tribe's position is not as unsupportable as most posts would seem. It is hard to argue that a homeowner standing on the threshhold of his house with a loaded and operation 12 gauge is not exercising his right to keep and bear arms
3.6.2008 9:41pm
GunShowOnTheNet.com (mail) (www):
Clayton E. Cramer said "The Militia Act of 1792 specifically required those assigned as cavalry to have handguns. They weren't optional."

Just as; "A BILL more effectually to provide for the national Defence, "That every citizen so enrolled and notified, shall within month thereafter, provide himself with a good musket or firelock", [Philadelphia, 1790]" did.

As well as; Major General ANDREW JACKSON, in his "General Orders" of November 24, 1812.

"Each officer and private of the dragoons, to provide himself with a horse, saddle, etc., pistols and sabre; and each non-commissioned officer and private, with a carbine and cartouch-box, with twelve rounds for his carbine and six rounds for each pistol."

- Alexander Hamilton, The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 6.
3.9.2008 12:39am