Last week, a federal appeals court overturned the District of Columbia’s gun ban on the grounds that the Second Amendment protects an individual’s right to keep a functional firearm in her home.
Some were shocked by the court’s interpretation of the Second Amendment. After all, we’ve heard for years that the prefatory clause of that amendment, “A well regulated Militia, being necessary to the security of a free State,” limits the operative clause, “the right of the people to keep and bear Arms, shall not be infringed,” to instances where arms are used in connection with service in the militia.
Those who follow Second Amendment scholarship, however, were not surprised by the court’s reasoning. For years, scholars have examined the text, history, and context of the Second Amendment. Those scholars built up a large body of evidence demonstrating that the “collective right” interpretation of the Second Amendment doesn’t stand up to scrutiny.
That effort arguably began with Prof. Sanford Levinson’s 1989 Yale Law Journal article, “The Embarrassing Second Amendment,” where he wrote:
For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.
Elsewhere, my colleague Tim Lynch links to reviews of several works that followed. One of the more interesting contributions to this line of scholarship is an article by Prof. Robert J. Cottrol titled, “A Liberal Democrat’s Lament: Gun Control Is Racist, Sexist, and Classist.” That article begins with a forceful quotation from Democratic icon Hubert Humphrey in support of “the right of the citizen to keep and bear arms.” Cottrol concludes:
[T]he ultimate civil right is the right to defend one’s own life, that without that right all other rights are meaningless, and that without the means of self‐defense the right to self‐defense is but an empty promise.
Our serious thinkers have been absent from this debate for too long. The Second Amendment is simply too important to leave to the gun nuts.
The majority opinion in Parker v. District of Columbia is evidence that serious scholars heeded that call, a good summary of the debate over the Second Amendment, and a lesson about how honest, careful scholarship can defeat a very appealing myth.
Hats off to those scholars, the litigants, and their counsel.