Laurence Tribe to Supreme Court: Restrain Yourself on Heller

[Bartholomew Roberts]

Source: March 4, 2008: http://blogs.wsj.com/law/

A few months ago, with news of the Supreme Court’s decision to review a D.C. Circuit handgun case, Law Blog colleague Jamie Heller spoke to Meir Feder — a former SCOTUS clerk, Wachtell lawyer, and now the head of the “issues and appeals” practice at Jones Day in New York. Meir had recently served as a judge on a moot court panel that heard the D.C. case, which involves a D.C. resident who has argued, successfully so far, that a citywide handgun ban violates his Second Amendment rights. Feder offered this prediction about how the real court, which hasn’t ruled directly on individual rights under the Second Amendment since 1939, will come out:

“I think the court is going to reverse,” said Meir. “The more difficult question is how far they’ll go. I think they’ll find there isn’t any strict protection for particular categories of firearms. But I would be surprised if they went so far as to say that the Second Amendment doesn’t protect any individual right.”

With the Court set to hear the case later this month, Harvard’s Laurence Tribe weighed in today in the WSJ. Tribe’s conclusion? Framing the issue is key.

“Gun enthusiasts on the right are all but daring justices . . . . to trash the ‘right of the people to keep and bear arms,” writes Tribe, so they can “use that defeat to suggest that we need a president who will bring us a truly ‘conservative’ Supreme Court.” While those on the left, adds Tribe, are challenging “a Court that they see as already leaning hard right to live up to its conservative principles, follow precedent, and limit the Second Amendment.”

The Court would be “foolhardy,” continues Tribe, to accept either side’s invitation to “plunge headlong into the culture wars by accepting these extreme ways of framing the issue.” Tribe says that even “liberal scholars” like him have concluded, against their political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of militias, but that nothing he’s discovered “supports an absolute right to possess the weapons of one’s choice.”

The D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area was unconstitutional. Tribe believes this went too far– that “a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence” should not be viewed as abridging the right of the people to bear arms. Therefore, Tribe believes the Court should reverse the lower court opinion, but go no further.

“Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved,” writes Tribe. “But to do anything else would ill-suit a court that flies the flag of judicial restraint.”

Looks like several influential lefty (Tribe and a former SCOTUS clerk) academics are pushing for the Solicitor General's approach - the Second is an individual right entitled to even less protection than we give non-enumerated rights.

 

[Robert Hairless]

If the Supreme Court takes that approach, I wish they'd extend it to other rights.

I thoroughly support freedom of speech, for example, but there's far too much dangerous nonsense spoken today and I want it stopped. I like Tribe's point about the special need to regulate rights in densely populated urban areas. Washington, DC, New York City, and Chicago are prime examples of such places in which people need to just shut up and stop making so much noise. I also admire the ability of people in this country to speak their minds but, really, that doesn't mean anyone has the right to disagree with me.

The Supreme Court at last has the opportunity to set a new direction for individual rights in this country.

 

[buzz_knox]

Looks like several influential lefty (Tribe and a former SCOTUS clerk) academics are pushing for the Solicitor General's approach - the Second is an individual right entitled to even less protection than we give non-enumerated rights.

That's the most likely result. People will argue that getting the 2nd recognized as an individual right is a win, but it really won't be.

 

[musher]

Tribe says that even “liberal scholars” like him have concluded, against their political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of militias, but that nothing he’s discovered “supports an absolute right to possess the weapons of one’s choice.”

To say there is no "absolute right to possess the weapons of one’s choice" is not to say that there are no particular types of weapons protected by a second amendment right.

To infer the second from the first seems a bit sloppy from a man of Tribe's reputation.

Perhaps the reporter misunderstood (or misreported?) what he said.

 

[Henry Bowman]

- the Second is an individual right entitled to even less protection than we give non-enumerated rights.

I've been predicting this sort of decision for years. For some reason, I've let myself gather some hope for better over the past few months. We shall see.

 

[Wineoceros]

To say there is no "absolute right to possess the weapons of one’s choice" is not to say that there are no particular types of weapons protected by a second amendment right.

To infer the second from the first seems a bit sloppy from a man of Tribe's reputation.

Which assumes that the faulty logic wasn't intentional.

Perhaps the reporter misunderstood (or misreported?) what he said.

No, that's exactly what he said. I read Tribe's original piece, and that's an exact quote.

 

[green-grizzly]

So the court avoiding the cultural wars is more important than what the constitution actually says? The extent to which these constitutional experts ignore what is actually in the constitition continues to amaze me.

 

[jlbraun]

So the court avoiding the cultural wars is more important than what the constitution actually says?

That argument is pretty much all they have left.

 

[El Tejon]

Aren't law school professors a hoot! They could care less about the Constitution yet they purport to teach it.

"All animals are equal, but some animals are more equal than others."

Let's see, Professor, what has the Supreme Court said about your hierarchy of rights a la your instruction manual, Animal Farm:

"[W]e know of no principal basis on which to create a hierarchy of constitutional values." Valley Forge Christian College v. Americans United, 454 U.S. 464, 484 (1982).

"That the Framers thought some rights sufficiently susceptible of legislative derogation that they should be enshirined in the Constitution does not necessarily indicate that the Framers likewise inteneded to establish an immutable hierarchy of rights in terms of their importance to individuals." Butz v. Economou, 438 U.S. 478, 523 (1978).

Oh, the filthy hyprocrites in the Left and their smug pronouncements on the First Amendment. However, the Second Amendment is treated as a threat, not a liberty.

 

[buzz_knox]

So the court avoiding the cultural wars is more important than what the constitution actually says? The extent to which these constitutional experts ignore what is actually in the constitition continues to amaze me.

This wouldn't be the first time the Supremes punted, nor will it be the last.

 

[yokel]

It begins to look as though Mr. Tribe might not be quite so anti-gun as his pedigree would suggest – just so long as the guns in question are in the hands of the government.

He seems to assume all Second Amendment supporters are just "gun enthusiasts" worried about the future of their hobby, when it's truly about enabling individuals to defend themselves against stronger assailants and citizens to defend their rights against tyrannical governments.

 

[DonP]

Mr. Tribe finds himself in a very uncomfortable place lately.

He finally came out a few years ago and admitted the obvious, the 2nd amendment constitutes what is indeed an individual right, not the collective right the left had been hiding behind.

I'm sure it got him uninvited to a lot of NYC, Long Island and Georgetown cocktail parties for betraying his Nanny State friends and their "only the police should have guns - not even those evil military types" belief system.

Now, seeing the handwriting writ large and in Helvetica bold on the wall, he's trying to find a "middle ground" and, while still acknowledging the individual right, allow for the government to regulate that right to the edge of irrelevance.

As in ... "It's wrong to ban all guns, but you can ban handguns if you allow people to have a single shot shotgun in their home and require it to be stored in a safe."

I expect to see a lot of other new recipes published for eating intellectual crow for a lot of these guys in the next few weeks.

 

[romma]

Wouldn't be fun if in some eloquent judgement, the Supremes threw out every gun grabbing law in one fell swoop?

Hey. a guy can dream can't he?

 

[littlegator]

Coming from one with as much S.Ct. experience as Tribe though, his opinions, whether they are a prophetic or an attempt to indirectly guide the Court, hold weight, and underline the political underpinnings of the Court's decision-making. The Court has been known to draw bright line rules as well as restrain themselves and do exactly as he intimates. I do believe, however, that this decision is ripe for the bright line.

 

[littlegator]

It begins to look as though Mr. Tribe might not be quite so anti-gun as his pedigree would suggest – just so long as the guns in question are in the hands of the government.

I've spoken to him before when he spoke at my law school - granted, it wasn't about the 2A, but was about another controversial subject - the death penalty. He appeared to be to be academic about the subject, giving ground on personal convictions while maintaining precedent on the law. Death penalty jurisprudence, however, has over the years, become an interesting litmus, since it's legal doctrine is based upon changing national feelings - "national consensus". Thank former Justice O'Connor for that one. In any case, his feelings are obvious on the 2A issue given what he desires the Court to achieve, which is nothing.

 

[Cosmoline]

I would flip Tribe's coin around. I think a limited, careful decision will function best. This has to be done in small steps, one brick at a time, if it is to last. But I think they should uphold the decision rather than reverse it.

 

[ctdonath]

So the court avoiding the cultural wars is more important than what the constitution actually says?

Several briefs have made it subtly clear that if they don't follow the Constitution they WILL have a culture war.

 

[au1776]

If there is a reason to vote for McCain in November, it's the prospect of Tribe being nominated to the Court.

 

[LawBot5000]

If we lose the court case, we win the election. Mark my words. I've been saying for nearly a year now that this case is a win-win for the gunnies. We've already won the political battle IMO. CCW in nearly every state. Even the most die hard anti-gun politicians claiming they love guns. News media finally bowing to the inevitable. Our enemies are afraid to oppose us. We have won. All that remains is the question of how long it takes for us to cement our victory and bring it to the holdout states.

The supreme court may recognize this has happened and give our victory a stamp of approval. This will hurt (as in, get rid of their gun control laws) the places like the 9th circuit or IL that have put a lot of eggs in the gun control basket, but it will minimize damage to the many other causes that these people hold dear.
-or-
They will push feebly back against the tide, stirring the movement to further political exertions. If 4 reliable justices isn't enough, we just keep pushing till we have 6 or 8. If the progressives wish to drag down their entire movement by marrying themselves to a poisonous issue, then so be it. I won't miss them.

I think republicans are aware of this. This is why every time the Democrats offer a new bill this year, the senate republicans offer up a pro-gun amendment to it so that Hillary and Obama will be forced to show their true colors. They are getting ready for the big push after the supreme court pisses off gun owners.

 

[txgho1911]

For freedom of speech. If you read the 1st carefully it says "Congress shall make no law" So in original application I would assume states and other gov bodies other than the US Congress could easily regulate the press to prevent bias and require defined lines between reporting news and commentary.
The 2nd reads "shall not be infringed".
I think that reads a whole lot clearer than the first.

 

[Kim]

The reason we have the so called culture was is BECAUSE the USSC poked their collective nose into business that was not theirs. They caused the wars. They may just cause another one albeit different than what Tribe whines about

 

[Ragnar Danneskjold]

Heller is why it's even more important to keep Obama and Hillary out of the White House. If we can get just 1 or 2 more real judges in the SC, the next time another gun case comes up, we would have a real chance to get a much wider ruling in our favor. And using Heller as a stepping stone, a more constructionist SC would be more willing to not only take another gun case, but rule in our favor.

The 2008 election is about SC Justices.

 

[ConstitutionCowboy]

The extent to which these constitutional experts ignore what is actually in the Constitution continues to amaze me.

I'm not amazed. They think they know better that we do - even better than the Founding Fathers. I do understand them to a certain degree. They speak not from experience but from theory. Even the failure of those theories put into practice is not a deterrent to them. To them, the theory will always suffer from not being implemented properly, or no one cooperated. Even a coddled populace will demand more and more and appreciate it less and less until such a system will collapse.

The best system is one where people are free to pursue their dreams and talents, depend upon self sufficiency, strive for excellence, and maintain their own personal sovereignty. Any system that maintains such a way of life is bound to succeed. That is what the Constitution is for. All the ills we suffer can most likely be directly connected to a usurpation, ignored limit, bastardized definition, or onerous amendment to the Constitution.

He seems to assume all Second Amendment supporters are just "gun enthusiasts" worried about the future of their hobby, when it's truly about enabling individuals to defend themselves against stronger assailants and citizens to defend their rights against tyrannical governments.

Yup. He knows the truth, but has deemed it hazardous to our well being, therefore, it must be given a good dose of misconception. I wonder where he places the protection of his own personal rights and his own skin in his view of the world...

Several briefs have made it subtly clear that if they don't follow the Constitution they WILL have a culture war.

I'm sure such a culture war could get bloody. I often wonder how those who would disarm us will carry that out...

If the Court wishes to slime the Right to Keep and Bear Arms, they'll do it in a fashion the Court used in Miller by "reading" into the militia clause and coming up with some heretofore undiscovered nuance, or an interpolation such as drafting something from Article I, Section 8, Clause 16, to the effect that the states may limit the citizens to keep and bear only such arms that the officers, chosen by the states, are required to train the militia in the use of.

Example: No training in the use of .50 caliber arms - you can't keep and bear .50 caliber arms.​

I doubt we'll be so fortunate that the Court will unite behind us. I don't think there are enough courageous and honorable people seated there.

Woody

Our government was designed by our Founding Fathers to fit within the framework of our rights and not vise versa. Any other "interpretation" of the Constitution is either through ignorance or is deliberately subversive. B.E. Wood

 

[Winchester 73]

I doubt we'll be so fortunate that the Court will unite behind us. I don't think there are enough courageous and honorable people seated there

You are very knowledgeable ,but you are about to be proven wrong.
Which you want to be.

 

[Deavis]

District’s ban on concealable handguns in a densely populated area was unconstitutional

Sigh, another article that misrepresents the question the SC has posed for political reasons. Perhaps it is just that tthe reporter was too lazy to actually go and read up on the case. The ban has nothing to do with concealable handgun and densely populated areas. It is an outright ban on all handguns in an area that happens to be dense. Sigh...