Legal News

Laurence Tribe to High Court: Restrain Yourself

By Dan Slater

A few months ago, with news of the Supreme Court’s decision to review a D.C. Circuit handgun case, Law Blog colleague Jamie Heller spoke to Meir Feder — a former SCOTUS clerk, Wachtell lawyer, and now the head of the “issues and appeals” practice at Jones Day in New York. Meir had recently served as a judge on a moot court panel that heard the D.C. case, which involves a D.C. resident who has argued, successfully so far, that a citywide handgun ban violates his Second Amendment rights. Feder offered this prediction about how the real court, which hasn’t ruled directly on individual rights under the Second Amendment since 1939, will come out:

“I think the court is going to reverse,” said Meir. “The more difficult question is how far they’ll go. I think they’ll find there isn’t any strict protection for particular categories of firearms. But I would be surprised if they went so far as to say that the Second Amendment doesn’t protect any individual right.”

With the Court set to hear the case later this month, Harvard’s Laurence Tribe weighed in today in the WSJ. Tribe’s conclusion? Framing the issue is key.

“Gun enthusiasts on the right are all but daring justices . . . . to trash the ‘right of the people to keep and bear arms,” writes Tribe, so they can “use that defeat to suggest that we need a president who will bring us a truly ‘conservative’ Supreme Court.” While those on the left, adds Tribe, are challenging “a Court that they see as already leaning hard right to live up to its conservative principles, follow precedent, and limit the Second Amendment.”

The Court would be “foolhardy,” continues Tribe, to accept either side’s invitation to “plunge headlong into the culture wars by accepting these extreme ways of framing the issue.” Tribe says that even “liberal scholars” like him have concluded, against their political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of militias, but that nothing he’s discovered “supports an absolute right to possess the weapons of one’s choice.”

The D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area was unconstitutional. Tribe believes this went too far– that “a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence” should not be viewed as abridging the right of the people to bear arms. Therefore, Tribe believes the Court should reverse the lower court opinion, but go no further.

“Issuing a narrow decision would disappoint partisans on both sides and leave many questions unresolved,” writes Tribe. “But to do anything else would ill-suit a court that flies the flag of judicial restraint.”

Full post as published by Law Blog - WSJ.com on March 04, 2008 (boomark / email).