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.