Scholars and the Second Amendment: Jonathan links to Adam Liptak's story today in the New York Times on the Second Amendment and the role playing by "liberal" academics in attaining acceptance for the individual rights reading. He also links to Jack Balkin's comments diminishing the role of academics and crediting the popular constitutionalism of the gun rights political movement. There's more than enough credit (or blame) to go around.

First, I think there is no question that the acceptance of the individual rights interpretation by Sandy Levinson in his 1989 Yale Law Journal article, The Embarrassing Second Amendment, followed by Bill Van Alstyne, Akhil Amar and Laurence Tribe thereafter played an enormous role in legitimating the individual rights position and undercutting the ad hominems used by gun control folks that the individual rights position was a figment of the NRA's heated imagination. (For example, see the notorious law review article, Gun Crazy, which initially induced me to write a response that became my first Second Amendment article in the Emory Law Journal). In this sense, I agree with the thrust of the Times column that the endorsement of the individual rights position by these well respected "liberal" scholars was crucial to the growth in acceptance of this view. And it forced those opposing the individual rights position to step forward with reasoned arguments, as they have in another important part of the story that the Times omits (more on this below).

Second, I think Jack Balkin is perfectly right that the sustained and effective political pressure on behalf of gun rights has been more important than academic research, especially in preserving that freedom in the absence of any constitutional protection. Political activity also provided the impetus for the Democrats' retreat from challenging basic gun rights (at least rhetorically) after the 2000 election. Indeed, so powerful has been the political protection of gun rights that one wonders whether they would be weakened rather than strengthened if and when the Supreme Court affirms an individual rights reading. (See below on this also).

What the story leaves out, of course, are the prodigious efforts of those "libertarian" and "conservative" constitutional scholars who did much of the heavy lifting when it comes to the original meaning of the Second Amendment AND the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. And this scholarly effort was pioneered by nonacademics.

No one did more to revive the individual rights position than gun rights activist Don Kates. Indeed, Levinson credits Kates' influential 1983 Michigan Law Review article, Handgun Prohibition and the Original Meaning of the Second Amendment, with changing his mind about the Amendment. Another prolific nonacademic author and litigator is Steve Halbrook. In addition to his Second Amendment scholarship, Halbrook's path-breaking work on the Fourteenth Amendment, Freedman, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, has yet to be answered, to my knowledge, by any scholar on the other side. (It would not surprise me if I missed something here as it has become hard to keep up with the burgeoning literature in this field.) Indeed, it was anticipated by "liberal" constitutional scholar, Michael Kent Curtis in his important 1986 book, No State Shall Abridge. Another early nonacademic scholar was David Hardy.

The writings by these nonacademic are as scholarly as those by any academic I know, and predated by several years the involvement of academics. A bit later, very important work was done by my nonacademic co-blogger Dave Koppel. More recently, Clayton Cramer played an important role in debunking the Michael Bellisiles fraud.

But the research of professors such as Joyce Lee Malcolm, Glenn Reynolds, Robert Cottrol, Eugene Volokh, Brannon Denning, and many others was absolutely crucial to whatever success the individual rights position has enjoyed.

(As you will tell from my linking, much of the scholarship on both sides of this debate can be found here. I apologize in advance to the many writers who have contributed importantly to the scholarly literature whom I have failed to mention.)

I was a relative latecomer to this issue with my 1996 Emory Law Journal article, Under Fire: The New Consensus on the Second Amendment, co-authored with Don Kates. This article's reference to the "new consensus" on the Second Amendment predates the recent scholarly pushback against the individual rights position, thereby negating the existence today of any scholarly consensus. My most recent 2004 piece in the Texas Law Review, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, replies to this reformulation of the pro-gun-control position as an individual right conditioned on participation in an organized militia.

This last point highlights the other significant development omitted by the Times: the concerted scholarly response to the individual right scholars, most of which is centered around the 2000 Symposium on the Second Amendment: Fresh Looks, in the Chicago-Kent Law Review, and the Second Amendment Research Center at Ohio State run by Saul Cornell.

In the 2002 case of Silveira v. Lockyer, Judge Stephen Reinhardt relied heavily on this scholarship in the first attempt at a truly "originalist" opinion by a federal court of appeals to reject an individual rights interpretation. (Judge Reinhardt also relied on the now-discredited work of Michael Bellesiles, and the opinion now in the Federal Reporter is revised to omit these references. The Ninth Circuit still has the original version online here.) Silveira was decided in the wake of the 2001 Emerson decision in the Fifth Circuit that had endorsed an individual rights position on originalist grounds, and relied heavily on the scholarship noted above.

When Don and I claimed the existence of a "scholarly consensus," we defined this carefully as a consensus of constitutional scholars who had written on the Second Amendment (as opposed to most scholars who taught constitutional law but did no work on this subject). Thanks to this recent pushback, there is no longer a scholarly consensus and a "liberal" Supreme Court Justice could well follow Judge Rienhardt's lead in rejecting the individual rights interpretation.

Judge Reinhardt's opinion highlights a generally neglected facet of this debate. It is conducted almost exclusively on originalist grounds, even by nonoriginalists such as Judge Reinhardt. While all who criticize the individual rights position on originalist grounds are themselves nonoriginalists, Michael Dorf is a rare writer on the Second Amendment who expressly defends a nonoriginalist approach to the issue.

One question this raises for me is the role that has been played by the debate over the meaning of the Second Amendment in the rise of originalist interpretation. Indeed, in my case, I was drawn to originalism in important part by my own work on the original meaning of the Ninth and Second Amendments that I had began writing well before I was an originalist myself. I started to wonder why I cared so much about original meaning while rejecting originalism as a method of interpretation.

Several other interesting questions are raised by the remarkable political success of the gun rights movement noted by Jack Balkin: Would gun owners be better off or worse off if the Supreme Court does recognize an individual right to arms? Or would the federal courts then consistently uphold gun laws, as the Emerson court did, thereby weakening the right in practice? And would the supposed constitutional "protection" of gun rights also weaken the impetus for the very political efforts that have actually protected gun rights? Would gun control enthusiasts be shrewd to embrace the individual rights interpretation of the Second Amendment as away of taking some of the political steam out of those who oppose most gun controls?

To be clear, I strongly support the constitutional protection of gun rights under the Second and Fourteenth Amendments. But I also acknowledge that, while ruling out confiscation and prohibition, the protection of these rights allows "reasonable" regulation in the same manner as the First Amendment does not rule out reasonable time, place, and manner regulations of speech and assembly. What an individual rights reading of the Second Amendment does require is meaningful scrutiny of any proposed regulation that purports to be a safety measure but is really designed to place an undue burden on the exercise of a fundamental rights, especially those that are not narrowly tailored to their purported public safety rationales. (It also requires an appropriate interpretation of the "police power" of states by which to gauge the appropriate purpose of any gun law; that is, the protection of the rights of others.) Yet the allegedly strong constitutional protection of the freedom of speech did not stop the Supreme Court from upholding shocking restrictions of the political speech that is at the heart of the First Amendment in the name of "reasonable campaign finance reform."

Would the same thing happen to gun rights, while weakening political opposition to unreasonable gun controls? Or would the constitutional protection of gun rights increase the legitimacy of the gun rights position and thereby enhance its political power?

Because I do not think we can ever know the answer to these questions in advance, I favor the judicial protection of all constitutional liberties and let the resultant political chips fall where they may.