A Liberal Case for the Individual Right to Own Guns Helps Sway the Federal Judiciary
The New York Times
May 7, 2007

In March, for the first time in the nation's history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists -- thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

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Scholars who agree with gun opponents and support the collective rights view say the professors on the other side may have been motivated more by a desire to be provocative than by simple intellectual honesty. ''Contrarian positions get play,'' Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. ''Liberal professors supporting gun control draw yawns.''

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Professor Bogus, a supporter of the collective rights view, said the Parker decision represented a milestone in that strategy. ''This is the story of an enormously successful and dogged campaign to change the conventional view of the right to bear arms,'' he said.

The text of the amendment is not a model of clarity, and arguments over its meaning tend to be concerned with whether the first part of the sentence limits the second. The history of its drafting and contemporary meaning provide support for both sides as well.

The Supreme Court has not decided a Second Amendment case since 1939. That ruling was, as Judge Stephen Reinhardt, a liberal judge on the federal appeals court in San Francisco acknowledged in 2002, ''somewhat cryptic,'' again allowing both sides to argue that Supreme Court precedent aided their interpretation of the amendment.

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