NY Times acknowledges change in 2nd amendment scholarship
When even the New York Times acknowledges the change in scholarly perception of the 2nd Amendment, you know it has arrived.
They overstate the change a little: "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..." Judicial (at least lower courts) yes, but scholarly, not really. When I started writing law review articles in 1974, there were only a handful of articles, none of any note, and most of those were "collective right." I just wouldn't count, and I guess here at the number, three of the five articles as "an almost complete consensus." More like "a handful of people had written on it, and a majority of those took the collective rights view."
Of course, NY Times does give Brady Center's spin, which is FAR off the real situation, big play: "The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”"
Exceptions? We're talking about 90% of scholarship in the last quarter century. We're talking about all the big names in con law -- Sanford Levinson, William van Alstyne, Akhil Amar, Larry Tribe.
Chuckle--the DC attorney in the Parker case says "We all remember very well when D.C. had the highest murder rate in the country, and we won’t go back there.” Yep, I remember it, too. I was working at Interior then. One of the more cynical attorneys had a betting pool on when DC would break 300 homicides (I forget who won). DC's handgun ban had been in effect for ten or twenty years then.
[Update: yup, the collective right theory in court opinions traces to circuit courts of appeals reacting to the Supeme Court's Miller decision in the 1940s. They appear startled to realize that, under Miller, possession of almost any military-type firearm would be protected. One circuit court sets out to misread Miller, the other argues that Miller just established a minimum threshhold test and other courts can go farther. Other circuits picked up on those two over the 1950s and 1960s.
The idea had been around longer. Saul Cornell found a constitutional textbook aimed at the masses, from the 1830s or so, that mentioned the idea in terms of "maybe we can read it this way." And an 1842, I believe, state court case mentioned it in one of the three judges' opinions. But until 1941 or thereabouts, that was it. For all practical purposes, the "collective rights" concept arises from the federal circuit courts over the last sixty years, as a way of getting around Miller].