ABC's Greenburg: 2nd Amendment Not for Individuals Is Legal Orthodoxy

Noting Sen. Barack Obama's recent statement that he considers the Second Amendment an individual right -- setting aside for a moment his pro-gun control record and defense of the D.C. handgun ban -- ABC's Jan Crawford Greenburg dismissed private gun ownership as constitutionally protected, holding instead that the "orthodox" view defends only a state's right.

Here's the relevant portion from a February 15 entry at Greenburg's Legalities blog (emphasis mine):

A day after the tragic shootings at NIU, Barack Obama has revealed that he thinks the 2nd Amendment protects an individual’s right to own a gun.

That sounds surprising—and certainly not what you’d expect from someone with the Senate’s most liberal voting record.

Here he is, weighing in on one of the biggest and most contentious cases the Supreme Court will hear this term, a case that finally will answer one of the great unresolved question constitutional questions: Does the 2nd Amendment protects a person’s right to own a gun, or does it merely protects a state’s right to assemble a militia?

By embracing the individual rights approach, Obama is bucking gun control groups and states like New York, which have taken the more orthodox position that the 2nd Amendment only protects a state’s right—and that cities like Washington, D.C. can therefore ban all guns if they choose.

Of course, the notion that the 2nd Amendment protects an individual's right to keep and bear arms is not only orthodox and consistent with the Bill of Rights defining the rights of the "people" as individuals, it's hardly an interpretation limited to right-wingers.

Liberal constitutional scholar Laurence Tribe, for example, believes the 2nd Amendment enshrines an individual right to keep and bear arms. From that notorious right-wing rag the New York Times (May 6, 2007; emphasis mine):

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.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”

The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.