By Damon W. Root
In a long post titled “The Tea Party’s Fatal Delusion,” Daily Beast blogger Andrew Sullivan takes aim at the “spasm of ideological abstraction and purism” which he says has gripped the American right since 2008 and manifested itself in all sorts of regrettable ways, from “draconian anti-illegal-immigration initiatives” to “the total denial of climate change.” I agree with some of Sullivan’s criticisms of the modern conservative agenda and disagree with others, but when it comes to his take on the Supreme Court and the Second Amendment he couldn’t be more wrong. According to Sullivan, the right’s current “spasm” has included “a Supreme Court happy to find radical new interpretations of the Constitution” such as “turning the Second Amendment into something more radical than anything previously contemplated.”
Sullivan refers here to District of Columbia v. Heller, the 2008 decision where the Court held that the Second Amendment protects an individual right—not a collective one—to keep and bear arms. For an allegedly radical piece of conservatism, the individual rights interpretation of the Second Amendment has a curiously distinguished list of liberal admirers. Among them are Harvard law professor Laurence Tribe, a longtime friend and adviser to Barack Obama, whose influential legal textbook American Constitutional Law was revised back in 2000 to endorse the individual rights interpretation of the Second Amendment. The two previous editions, published in 1978 and 1988, respectively, had argued that the Second Amendment protected only a collective right, but subsequent legal scholarship prompted Tribe to change his mind. “My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe later admitted to The New York Times. “I have always supported as a matter of policy very comprehensive gun control.” Not exactly the words of a deranged Tea Party extremist.
Other liberal supporters of the “radical” individual rights interpretation include Yale law professor Akhil Reed Amar, one of the most respected progressive legal historians at work today, who has argued that the Second Amendment secures a “core right to self-protection,” and University of Texas law professor Sanford Levinson, whose pioneering 1989 Yale Law Journal article "The Embarrassing Second Amendment" argued that it was time for liberals to take the entire Bill of Rights seriously.
In other words, several decades worth of legal scholarship and activism by players of all political stripes helped create the intellectual consensus that culminated in the Heller decision. It was no right-wing “spasm.”
Finally, in regards to Sullivan’s dubious assertion that Heller turned “the Second Amendment into something more radical than anything previously contemplated,” I submit these decidedly non-radical words from Justice Antonin Scalia’s opinion for the Heller majority:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.