Standard Shift

U.S. Attorney General John Ashcroft has been getting
himself dusty in the law library lately. News organizations reported on July 12
that Ashcroft, a National Rifle Association member, had reversed the Justice
Department's long-standing constitutional interpretation of the Second Amendment
(which reads: "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"). According to Ashcroft, the amendment protects a robust
individual right to bear arms for every American, and not merely a
collective right limited to militia service, as federal courts have ruled.
This is no mere abstract intellectual dispute: The Justice Department shift could
make it easier to bring constitutional challenges against the nation's gun laws.

In a May letter to the National Rifle Association, Ashcroft maintained
that his individual-rights interpretation "is embraced by the preponderance of
legal scholarship on the subject." But Ashcroft's grasp of the legal writings
appears selective, to say the least. An issue of the Chicago-Kent Law Review
released last February contained 11 articles on the Second Amendment, 10 of them
pillorying the individual-rights interpretation. One, authored by the Pulitzer
Prizewinning Stanford historian Jack Rakove, called defenders of the Ashcroftian
view "raiders who know what they are looking for, and ... care little about
collateral damage to the surrounding countryside that historians better know as
context." (A similar charge has also been eloquently leveled by Garry Wills.)
Another article, by Emory University's Michael Bellesiles--whose Arming America:
The Origins of a National Gun Culture
won the coveted Bancroft Prize for
American History and Diplomacy last year--accused Ashcroft's intellectual allies
of engaging in quotation hunting rather than taking on "the hard and
time-consuming task of archival research."

But perhaps the most interesting Chicago-Kent article was written by
Robert Spitzer, a political scientist at the State University of New York,
Cortland. Through a statistical analysis of Second Amendment writings based on
the Index to Legal Periodicals, Spitzer discovered that from 1912 to 1999
there have been 76 substantive articles in legal journals defending the
collective-rights view and 88 supporting the "individualist" view. It looks as
though the contesting interpretations are running pretty much neck and
neck--until you examine the interval between 1990 and 1999. That period witnessed
the publication of 58 of the 88 total Ashcroftian-interpretation individualist
articles; 79 out of 88 have been written since 1980. Based on Spitzer's numbers,
it does look as though a "preponderance of legal scholarship" has very recently
coalesced behind Ashcroft's view.

But look closer and that preponderance begins to look suspicious.
For one thing, Stephen P. Halbrook and Don B. Kates, Jr., two lawyers who defend
gun-rights groups and firearms manufacturers, wrote roughly 20 of those 79
articles. For another, the advancement of the individual-rights interpretation
has had large amounts of financial assistance. During the 1990s, the NRA Civil
Rights Defense Fund doled out large grants for scholarly research on the Second
Amendment (a total of $194,345 in 1994, for example). And the nonprofit group
Academics for the Second Amendment--which has been partly subsidized through the
same funding mechanism and whose president sits on the board of the NRA--has
offered scholars free transportation to the conferences it sponsors across the
country if they promise to write something on the topic. In other words, the
individual-rights folks have had a lot more "encouragement" than the
collective-rights camp (at least until 1999, when the Joyce Foundation sponsored
the Chicago-Kent symposium and law review on the Second Amendment).

One unfortunate characteristic of the NRA's individual-rights gang is
its rather anti-intellectual tendency to proclaim outright victory in the battle
of ideas--even when the battle is clearly still being waged. Ashcroft evidently
draws support for the Justice Department's new stance from the 1995 proclamation
by University of Tennessee College of Law professor Glenn Harlan Reynolds that
the individual-rights view had become the "Standard Model" for reading the Second
Amendment. But Reynolds's declaration was an outrageous instance of jumping the
gun, as it were. "Glenn Reynolds prematurely and quite unfortunately claimed
there was a consensus," says University of Texas School of Law professor Sanford
Levinson, who himself advanced the individual-rights view in an influential 1989
article in the Yale Law Journal. "The 'Standard Model' rhetoric has even less
purchase today," Levinson continues. "There's a really interesting controversy
going on."

Not only is Ashcroft a few years behind on the literature--no standard model
currently holds--but he also seems conveniently unaware of any Second Amendment
thought predating the individual-rights onslaught of the 1980s and 1990s. Until
fairly recently, the contrary collective-rights interpretation was firmly
established. Not only had it been the official Justice Department stance since
the Nixon era, but it has been upheld by virtually all federal courts that have
interpreted the 1939 Supreme Court decision U.S. v. Miller--the last decision
on the matter by the high court--which held that the Second Amendment's
protection extends only to gun ownership that has a "reasonable relationship" to
militia service.

Indeed, one reason the volume of individual-rights scholarship has so
outpaced collective-rights scholarship in recent years is that the Second
Amendment had seemed a matter of settled law. "People who agree with the
collective-rights position did not really have a reason to be writing about it
until the NRA began to ballyhoo this great mass of literature on its side," says
Carl Bogus, an associate professor at Roger Williams University School of Law,
who wrote the introduction to the Chicago-Kent symposium.

There's also no question that the NRA reaped intellectual gains from Sanford
Levinson's 1989 act of intellectual gadflyism in defending the individual-rights
view (Levinson is a liberal Democrat). The individual-rights interpretation
advanced further when Levinson's take was supported--partially, at least--by
other prominent liberal legal scholars, such as Yale's Akhil Amar, Duke's William
Van Alstyne, and Harvard's Laurence Tribe. In fact, in his May letter to the NRA,
Ashcroft cited Amar, Levinson, and Van Alstyne to indicate a bipartisan consensus
for his interpretation of the Second Amendment. But neither Levinson nor the
other liberals say that the debate is settled or that there is a standard model.
And there's a big difference between the nuanced position of a provocateur like
Levinson and that of NRA activists, who claim the Second Amendment debate has
been decisively and permanently won.

Second amendment scholarship matters. Ashcroft's mandated
shift in position comes as the Justice Department has a Second Amendment case
pending before the U.S. Court of Appeals for the Fifth Circuit--the result of a
renegade Texas district court judge who, like Ashcroft, cited "Standard Model"
writings to take on established precedent. The Brady Center to Prevent Gun
Violence has suggested that Ashcroft's reversed interpretation improperly
compromises the Justice Department's stance in the Texas case.

Indeed, it's possible that Ashcroft's move will make that case--U.S. v.
Emerson
--more likely to reach the Supreme Court, where Antonin Scalia and
Clarence Thomas have been licking their judicial chops over "Standard Model"
scholarship. Now if those justices get to hear a gun case, they'll be able to
cite the individual-rights position as the official view of the U.S. government.

The stakes are high. If the "Standard Model" were in fact to become the law of
the land, a wave of NRA suits against gun laws would undoubtedly follow. This
might not be very good for the nation's collective health. But at least then John
Ashcroft could pack up his knapsack and come home from the library.

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