Who cares what Warren Burger thought about the Second Amendment?

May 20th, 2014

In 1990, Chief Justice Burger called the individual rights model Second Amendment a “fraud.” We all know he said it. He said it over and over again. Academics, pundits, and others like to cite this fact over, and over, and over again, as evidence that the NRA rewrote constitutional history in the last 25 years. The latest example is Michael Waldman, president of the Brennan Center for Justice, “How the NRA rewrote the Second Amendment” in Politico. It begins:

“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.

(As an aside, in what alternate reality is Burger a “rock-ribbed conservative”?????)

This citation to Burger only proves the point that at the time he made this statement in 1990, virtually everyone was ignorant about the history of the Second Amendment. Did anyone ask Burger what he thought about the Privileges or Immunities Clause? Or the Third Amendment? It hadn’t been studied, or litigated, or even discussed in the mainstream.

That is, except for one article in the mainstream by Sandy Levinson, titled “The Embarrassing Second Amendment.” Sandy, no shill for the NRA, found that the Second Amendment does embody an individual right to keep and bear arms. Sandy has recently come to peace with the Second Amendment.

My own view is that District of Columbia v. Heller was probably (though not certainly) rightly decided, though I despise Justice Scalia’s opinion for the majority, which I regard as a thoroughly meretricious reading of the text and of the relevant historical materials. 

The article begrudgingly notes that Levinson,  as well as Tribe and Amar, came to the same conclusion.

Still, all this focus on historical research began to have an impact. And eventually these law professors, many toiling at the fringes of respectability, were joined by a few of academia’s leading lights. Sanford Levinson is a prominent liberal constitutional law professor at the University of Texas at Austin. In 1989, he published an article tweaking other progressives for ignoring “The Embarrassing Second Amendment.” “For too long,” he wrote, “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.” Levinson was soon joined by Akhil Reed Amar of Yale and Harvard’s Laurence Tribe. These prominent progressives had differing opinions on the amendment and its scope. But what mattered was their political provenance—they were liberals

I appreciate that there is a vigorous debate over the Second Amendment, but trotting out an uninformed, off-the-cuff 25-year old remark by one of the worst Chief Justices of the 20th century does not do much. This Burger is not well done.

As another aside, I’m shocked that there is a market for yet another book arguing for the collective understanding of the Second Amendment. I imagine Saul Cornell has done everything that can be done on this front.

Plus, I’m not sure what to make of this gratuitous shot at (my) Professor Joyce Malcolm.

Some of the assumptions were simply funny. In his book on judicial philosophy, Supreme Court Justice Antonin Scalia, for example, lauded Professor Joyce Lee Malcolm’s “excellent study” of English gun rights, noting sarcastically, “she is not a member of the Michigan Militia, but an Englishwoman.” But a historian fact-checked the justice: “Malcolm’s name may sound British, and Bentley College, where Malcolm teaches history, may sound like a college at Oxford, but in fact Malcolm was born and raised in Utica, New York, and Bentley is a business college in Massachusetts.”

What the hell is the relevance of this? Carl Bogus, the historian who wrote this,  disclaims in a footnote “In no way am I suggesting that Malcolm is less qualified to write on the subject because she is an American.”