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Laurence Tribe Speaks Against Heller

In the Wall Street Journal.  Tribe is a well respected constitutional scholar, so this isn’t a minor deal.  He’s come out in favor of an individual right in his book on constitutional law, so this is somewhat of a surprise. Heller’s attorneys seem to be a bit surprised too.  Tribe says:

But nothing I have discovered or written supports an absolute right to possess the weapons of one’s choice. The lower court’s decision in this case — the D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area to be unconstitutional — went overboard. Under any plausible standard of review, a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

So we can interpret other liberties in the Bill of Rights to apply depending on geography and population density?  Drugs are a scourge of the inner cities as well.  Would Professor Tribe support standard of review for the fourth amendment which would allow house to house searches for drugs in urban areas, while leaving the fourth amendment well enough in tact in rural areas?  I think most of us here would agree the fourth amendment is already subject to too lienent a standard of review.  I see no reason to do the same to the second.

Worse than that, it would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government’s uniquely powerful role as governor of the nation’s capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.

Fort Knox is a military installation.  Is Professor Tribe attempting to argue that it would be appropriate to apply martial law over The District? I would hope not.

UPDATE: Dave Kopel has more.

7 Responses to “Laurence Tribe Speaks Against Heller”

  1. Cam says:

    Frankly, I find the argument disengenious. Prof. Tribe talks about the District’s “ban on concealable handguns”, but the question before the court is whether the THREE D.C. provisions in question violate the individual 2nd Amendment rights of non militia members to keep firearms in their home for private use (paraphrased).

    If Tribe is really concerned about the Court taking the smallest step possible, he needs to recognize that there are three statutes in question here. All the Court needs to do is declare that taken together, the three statutes in question DO violate the consititutional right to keep and bear arms. It can leave the question of whether any of the three ordinances by themselves would violate the constititution for another case. At least, it would appear that way from this non-lawyer person.

  2. SayUncle says:

    it’s kinda like he went ‘oh crap, that’s what I said not what i meant’.

  3. Alcibiades McZombie says:

    Maybe we could start producing maps of where the Constitution doesn’t apply. It would go along with those Obama Gun Free Areas.

    The metric could be “Constitution-Free Zones are within 5 miles of any Federal property.”

    There, that makes sense.

  4. bill-tb says:

    Then there is the found right of absolute abortions … I wonder if we can vary the rights to aborting by where people live and population density as well. Surely you couldn’t argue it was an absolute untouchable right, like is so often done, if you used Tribe’s argument.

    Makes no sense, one the founders write down, the other made up from whole cloth. The written one you can violate every which way you want, the other made up right can’t be touched. Sure were strange people who wrote the US Constitution, or is the strange people those who are trying to reinterpret it?

    But we sure have square peg trying to fit into a to small round hole somewhere in there.

  5. Deavis says:

    Come on Bill, that is a very naive view of our Constitution and rights in general. The BOR doesn’t list all the rights that you posess as a human being, just a few that were so important to gaining passage of the Constitution that the Federalists had to write them down. The right to breath (i.e. live) or the right to procreate isn’t in the BOR but does that mean you don’t have either one? What about the right to protect yourself against attack, i.e. self defense? Just because the BOR doesn’t specifically address those rights or the right to do with your body as you chose doesn’t mean you don’t possess those rights. If people would get off the moral high horse and apply some logic they would realize that they have no place telling another person what they can do with their body anymore than the federal government can tell you that you can’t keep and bear arms to protect your life. You can’t just recognize rights that fit your moral compass, that is what liberals so when it comes to guns. It is wrong for them and us but the difference is that we are educated enough to know better.

  6. Carl in Chicago says:

    Well now, I too am a bit disappointed with Tribe’s backpeddling. Even knowing he leans toward preferring gun control, and given that he did say that the second amendment (meaning what it says) is “embarassing” to people with his views, it was my hope that he’d come through as being more supportive of the amendment, simply because it is THERE in the bill of rights.

    But what scholars like Tribe and Sanford Levinson have published in peer-reviewed scholarly law journals is there, out there for everyone to see. Likely, their work will be cited by the court in their opinion. At this point, they cannot simply say “oh…I didn’t really mean that.”

    Moreover, what Tribe’s article at the Wall Street Journal smacks of is politically motivated (or sociopolitically motivated) backpeddling and damage control. Course it’s quite possible that he’s beginning to wonder if the court might take a conservative, literalist view of the amendment and proclaim that it says, and means, what we all know it means. Perhaps that’s why he’s beginning the “plead” for the court to act with “restraint.” Could be that Tribe wonders if there are 5 votes for an opinion that is true to the second amendment…that it does indeed restrain governments from infringing on the right to keep and bear arms, and furthermore, acknowledge what it does NOT do – it does NOT guarantee or protect all those criminal activities which the gun and crime-control crowd fret so much about…it does not protect or authorize in any way that protected firearm may be used in all manner of crime and mayhem that we all, frankly, want to reduce. Just like free speech does not authorize libel, nor does free ownership of weapons authorize murder.

    All that said, we have to remember this….it’s not as if the court is going to stop and say “Wait a doggone minute! Did you see that article in the WSJ, saying that the DC handgun ban is constitutional? Well, if the WSJ published an article saying so, it must be so.”

    I chalk Tribe’s backpeddling up to damage control. He sees himself and partly responsible for this new movement to breathe meaning and substance back into the 2A, and, quite frankly, he probably wants to be remembered by his friends and peers as a moderate on the issue, rather than “that Harvard liberal who enabled the bite of the second amendment in modern America.”

  7. ParatrooperJJ says:

    Look at who he is campaining for…Obama. Tribe wants to be a judge.

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