What this big gun case can teach us about a hands-off judiciary.

The law, lawyers, and the court.
March 17 2008 2:21 PM

Butt Out

A big gun case as a natural experiment in judicial restraint.

(Continued from Page 1)

While the courts kept quiet, an extremely well-funded and powerful lobby group, the National Rifle Association, forcefully and effectively pushed the claim that the Second Amendment confers an individual right to bear arms. The NRA is 4 million-plus members strong and has handed out $15.3 million to candidates (most of them Republican) since 1980. It's credited by some with the 2000 defeat of Al Gore in rural states. But the NRA's political and financial clout pales next to its influence on our constitutional consciousness: National polls consistently show that in the wake of decades of legal scholarship, lobbying efforts, and an unparalleled public education campaign, about 75 percent of Americans believe the Constitution affords a personal right to own guns, even though a slight majority of Americans favor gun control of some sort. That means that over 70 years, public opinion has more or less flipped Miller on its head. It's romantic, really. Most of us longing for the legal reality we already had.

For many decades, this strange disconnect between the public understanding of the Second Amendment and the courts' interpretation simmered silently. In 1991, former Chief Justice Warren Burger even described the "individual rights" view of the Second Amendment as "one of the greatest pieces of fraud—I repeat the word 'fraud'—on the American public by special interest groups that I have ever seen in my lifetime." But the courts, including the Supreme Court, just stayed out of the conflict. Until last year, when the Court of Appeals for the District of Columbia circuit struck down the D.C. gun ban on the theory that the NRA is right, and the Second Amendment does protect an individual right to bear arms.

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Perhaps it's actually better for these complicated social questions to be decided by special interest groups than in the courts. But one other group of unsung heroes also led the charge against Miller: liberallegal academics. According to Robert Spitzer, a political scientist at State University of New York-Cortland and author of The Politics of Gun Control, the very failure of the Supreme Court to revisit the fight over the Second Amendment for all those decades created "the allegation of some legal pathology; that the court was avoiding it or embarrassed by it." This sense of intellectual embarrassment prompted one important liberal thinker, professor Sanford Levinson of the University of Texas, to pen a 1989 law review article in favor of a "strong reading" for the individual rights theory of the Second Amendment. Harvard Law School's Laurence Tribe and other prominent liberals followed.

Many of these scholars were less interested in forcing major changes to modern gun-control policy than in insider constitutional housekeeping. (They insist you can't be for strong individual rights under the Constitution and treat the Second Amendment like elevator music.) But the intellectual shift by the liberal academy helped motivate Dr. Robert Levy, a senior fellow at the Cato Institute and the engine behind the Heller lawsuit. Lately, some of those liberal thinkers have even been inching away from the political implications of their constitutional thought experiments.

So long-overdue is Supreme Court scrutiny in Heller that the Bush administration has now staked out one position, while Dick Cheney has staked out another. This has resulted in big fun for court watchers and less fun for the folks arguing against the D.C. gun ban this week. But another interesting question lurks under the showdown on gun rights: whether, in the absence of bold judicial pronouncements, large constitutional matters are truly better thrashed out by well-funded interest groups and well-meaning academics.

A version of this piece appeared in Newsweek magazine.

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