Akhil Amar, Lawrence Tribe and Gun Control

Here’s the question:

Marc Poulin ‏@Methos2010

@m10001 Bob what do you think of Akhil Amar's 2nd and 14th Amendment jurisprudence views and Laurence Tribe's vacillations?

Here's the answer:

The Second Amendment is very poorly drafted: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." It doesn't say whether a right to keep and bear arms is a right of individual persons or a corporate right of the citizenry of the particular states. One cannot resolve this conundrum with pure originalism and some other principle or principles must be used to solve the problem. Now this is a blog post instead of a law review article or book, but I was taught in law school that individuals asserting their Second Amendment rights to keep and bear their individual arms lost their cases. That's turned out to be less true than I was taught, but District of Columbia v. Heller, 554 U.S. 570 (2008) surprisingly upheld Heller against the District and was confirmed and expanded in McDonald v. Chicago, 561 US 3025 (2010) by enforcing the Second Amendment against the states through the Fourteenth. Insofar that Amar is arguing that "other principle or principles" exist, I agree with him, though I may not agree with his specific principles.

As for Tribe, his problem is that he needs seven pages in a textbook to explain his views. It's not weird that even a lefty like Tribe would  find a federal confiscation of all firearms unconstitutional. How close to that line would be acceptable is unclear to him. He appears to me to be intellectually honest not to be supportive of absolutely any gun control.

I speak about law here, not about what policy would be prudent. It appears to me that not all federal or state weapons regulation would offend the Second Amendment (federal) or the Second Amendment through the Fourteenth (state). If the feds confiscated a homemade nuke, I don't think a Second Amendment defense would work, not even here in Texas.

Must Reading for the Gun Rights Appellate Lawyer

Reading news reports of court action, especially appellate court action, is very frustrating. Vital information is often left out. Or one can tell from inconsistencies in the story that one can be sure that the story is wrong-- if only one knew which part. This post is about the finest piece of legal journalism I recall: Brian Doherty's "You've Come a Long Way, Baby" in the October Reason magazine. Doherty tells the background of appellate lawyer Alan Gura's successful assertion of  an individual, as opposed to a state's, right to keep and bear arms, in District of Columbia v. Heller, which he followed up with a second successful case on similar grounds: McDonald v. Chicago. Before reading this piece, I had not appreciated the role and the risk of Gura's strategy to apply the Second Amendment to the states by the privileges and immunities clause of the Fourteenth Amendment, nor how a fortuitously timed ruling of San Francisco's Ninth Circuit created-- for a time-- a split between it and the D.C. Circuit. Doherty also shows what clarification will be needed now that this right is established. If you have any appellate interest in gun law, this article is for you.