U.S. Attorney General John Ashcroft has been gettinghimself dusty in the law library lately. News organizations reported on July 12that Ashcroft, a National Rifle Association member, had reversed the JusticeDepartment's long-standing constitutional interpretation of the Second Amendment(which reads: "A well regulated Militia, being necessary to the security of afree State, the right of the people to keep and bear Arms, shall not beinfringed"). According to Ashcroft, the amendment protects a robustindividual right to bear arms for every American, and not merely acollective right limited to militia service, as federal courts have ruled.This is no mere abstract intellectual dispute: The Justice Department shift couldmake it easier to bring constitutional challenges against the nation's gun laws.
In a May letter to the National Rifle Association, Ashcroft maintainedthat his individual-rights interpretation "is embraced by the preponderance of legal scholarship on the subject." But Ashcroft's grasp of the legal writingsappears 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 defendgun-rights groups and firearms manufacturers, wrote roughly 20 of those 79articles. For another, the advancement of the individual-rights interpretationhas had large amounts of financial assistance. During the 1990s, the NRA CivilRights Defense Fund doled out large grants for scholarly research on the SecondAmendment (a total of $194,345 in 1994, for example). And the nonprofit groupAcademics for the Second Amendment--which has been partly subsidized through thesame funding mechanism and whose president sits on the board of the NRA--hasoffered scholars free transportation to the conferences it sponsors across thecountry if they promise to write something on the topic. In other words, theindividual-rights folks have had a lot more "encouragement" than thecollective-rights camp (at least until 1999, when the Joyce Foundation sponsoredthe Chicago-Kent symposium and law review on the Second Amendment).
One unfortunate characteristic of the NRA's individual-rights gang isits rather anti-intellectual tendency to proclaim outright victory in the battleof ideas--even when the battle is clearly still being waged. Ashcroft evidentlydraws support for the Justice Department's new stance from the 1995 proclamationby University of Tennessee College of Law professor Glenn Harlan Reynolds thatthe individual-rights view had become the "Standard Model" for reading the SecondAmendment. But Reynolds's declaration was an outrageous instance of jumping thegun, as it were. "Glenn Reynolds prematurely and quite unfortunately claimedthere was a consensus," says University of Texas School of Law professor SanfordLevinson, who himself advanced the individual-rights view in an influential 1989article 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 modelcurrently holds--but he also seems conveniently unaware of any Second Amendmentthought predating the individual-rights onslaught of the 1980s and 1990s. Untilfairly recently, the contrary collective-rights interpretation was firmlyestablished. Not only had it been the official Justice Department stance sincethe Nixon era, but it has been upheld by virtually all federal courts that haveinterpreted 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 sooutpaced collective-rights scholarship in recent years is that the SecondAmendment had seemed a matter of settled law. "People who agree with thecollective-rights position did not really have a reason to be writing about ituntil the NRA began to ballyhoo this great mass of literature on its side," saysCarl 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 SanfordLevinson's 1989 act of intellectual gadflyism in defending the individual-rightsview (Levinson is a liberal Democrat). The individual-rights interpretationadvanced further when Levinson's take was supported--partially, at least--byother prominent liberal legal scholars, such as Yale's Akhil Amar, Duke's WilliamVan 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 consensusfor his interpretation of the Second Amendment. But neither Levinson nor theother 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 likeLevinson and that of NRA activists, who claim the Second Amendment debate hasbeen decisively and permanently won.
Second amendment scholarship matters. Ashcroft's mandatedshift in position comes as the Justice Department has a Second Amendment casepending before the U.S. Court of Appeals for the Fifth Circuit--the result of arenegade Texas district court judge who, like Ashcroft, cited "Standard Model"writings to take on established precedent. The Brady Center to Prevent GunViolence has suggested that Ashcroft's reversed interpretation improperlycompromises 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 ofthe land, a wave of NRA suits against gun laws would undoubtedly follow. Thismight not be very good for the nation's collective health. But at least then JohnAshcroft could pack up his knapsack and come home from the library.
