October 8, 2015

Cass Sunstein purports to explain "How the Gun Lobby Rewrote the Second Amendment."

I know the author of a column probably doesn't write his own headline, but there's nothing in this column that explains how the gun lobby rewrote the Second Amendment. Sunstein explains how people in the law field long relied, without studying the question in depth, on an assumption about the meaning of the amendment. To do the deep study and to arrive at a different opinion of the meaning of a text is not to rewrite it.

Sunstein's column is loaded with filler that has nothing to do with how the gun lobby supposedly rewrote the amendment: the recent shootings in Oregon, a Ben Carson statement in support of gun rights, the recency of the Supreme Court's discovery of an individual right in the Second Amendment, an old statement in an interview by Chief Justice Warren Burger of his understanding that the Second Amendment contains no individual right to bear arms, old case law that failed to perceive an individual right.

In the 11th and 12th paragraphs of the 15-paragraph column, Sunstein presents the fact that the National Rifle Association spent money expressing its belief in the individual right, that expression "resonated with the public," and that public opinion is "used strategically by politicians seeking votes." Yes, we live in a culture, and we vote in a democracy, and voters respond to arguments they hear and feel persuaded by, but how does that mean that one set of voices rewrites a clause in the Constitution?

Here we are, then, it's Paragraph 13. I want the answer my question. What do we get? Sunstein admits that there is no rewriting!
An important qualification: The text of the Second Amendment is ambiguous, and it could indeed be read in favor of an individual right; historians continue to debate the question. And because the individual right to own guns has long been a central part of American culture, if not its jurisprudence, federal judges might well hesitate before entirely denying that right.
The introductory phrase "An important qualification" is a rhetorical trick to make us feel the author has already made the basic point and this is a minor concession for the sake of scrupulous accuracy. But the basic point has not been made and the concession is really all there is: It's a difficult question of interpretation, and when serious scholars did the hard work, many of them perceived a right, a right in the original text. These people were not "rewriting" the Second Amendment, and they certainly were not accepting a rewrite delivered by a political lobby.

Ironically, Sunstein, writing in a newspaper, attempting to influence public opinion, is more of a lobbyist than the scholars he'd diminish as manipulated by lobbyists. 

As for judges, of course they should hesitate before denying a constitutional right! Whatever is happening in the political arena, judges should always look carefully at claims of right, as I am sure Sunstein and fellow anti-gun rights law professors will say about non-Second Amendment rights.

Paragraph 13 is the shocking "never mind," and the column peters out in the final 2 paragraphs, ending with the assertion that gun rights "have a lot more to do with interest-group politics" than with what the Constitution really means, which is certainly a true statement about Sunstein's column.


Bob Boyd said...

If you want to understand the meaning of the Second Amendment try to take the guns. That will clear things up.

David Begley said...

Cass just upset Barack didn't appoint him to SCOTUS.

JackWayne said...

Someone nudge Sunstein and tell him to STFU.

Karen of Texas said...

I'm sure my gun control advocating friends will throw this column at me. Thank you for providing me with some rebuttal ammunition.

Question: Did you mean to say "weren't" in this paragraph?
"These people were not "rewriting" the Second Amendment, and they certainly were accepting a rewrite delivered by a political lobby."

Otherwise, I am confused.

Rae said...

it's easier to blame the guns than actually take the steps to fix the mental health system in this country. For one thing, the mentally ill are a big source of dem votes.

lgv said...

If one wants to argue that a lobby rewrote the constitution, perhaps abortion and gay marriage would make a better case. The interpretation of the individual right to bear arms has always been the case, whereas the constitutional right to abortion and same sex marriage is a relatively new interpretation (or re-writing if you prefer).

Bill, Republic of Texas said...

It's the LAW. Shut up you hater!

Monkeyboy said...

Well, the individual right interpretation is new, remember how the founding fathers took all the guns from the militias and put them in military storerooms? Remember the "common sense" restrictions on cannon and the ten day waiting period before someone could outfit a privateer during the war of 1812?

My suggestion is that we say the Constitution "evolved" and call people who are the wrong side of history "hoplophobes" and try to get them fired.

Chris N said...

So, what's the point of the piece?

To virtue-signal membership to like-minds? To stay relevant to a larger audience and on the right Rolodexes?

mikeyes said...

The ironic part is that gun ownershhip is an ennumerated civil right, one that is not recognized by the left - a reversal of the voting rights battles of the 50s and 60s. Authors like Cass Sunstein conflate gun ownership with gun violence using the logic that one could not happen without the other even though the number of guns owned by law abiding persons is incredibly larger than those used in crimes. They also bundle "mass murders" perpetrated by psychotic persons, suicide-murders and urban criminal elements which are not related at all.
I don't think anyone approves of the mass murder of children or street violence and there are limits to the right to bear arms. Historically, the right to walk around armed has only been challenged periodically for political reasons (the Sullivan Law, Jim Crow laws, etc) but more recently due to an increasingly urban demographic. Dead children make for good politics if you can exploit them. One of the easy ways to do this is to tke advantage of the ignorance of persons not brought up with guns (and true gun safety, not the hijacked version of the term) by demonizing all gun owners.
Still, it is an uphill battle for gun haters. Removing the Second Amendment would require garnering the approval of a supermajority of states (and all 50 have concealed carry laws) and the same in Congress. Low hanging fruit actions such as banning "assault weapons" have had no effect on the problems of gun violence and are reaching into the limits of the limits on the right to bear arms. There are (probably) 350 million firearms in the US, a number that seems to increase everytime there is a major push to take them away, which presents any concerted effort to reduce the numbers of firearms with significant issues regarding privacy, search and seizure, warrants, etc. or just the cost of such an effort. There have been articles stating that if Australia can do it (a mandated buy-back of guns), so can we. Such an argument ignores all the political, cultural, and demographic differences between our countries but sounds good.
There are no easy answers to gun violence problems and the fact is that both sides of the issue agree with the need to diminish this problem but they are so polarized at this point that concensus -even in the light of research - can't be reached.
Articles like this one only preach to the saved without offering any solutions, possibly because there are no solutions or because the solutions are too hard for each of the parties to accept. There certainly are no new ideas on the left and maybe it is time for gun owners to come up with solutions that will be both innovative and effective.

Left Bank of the Charles said...

Hanging the second amendment as a right limited to militias proved to be a very bad idea. As for the sawed off shotgun prohibition that Sunstein touts as being upheld in 1939, that was the justification used for sending federal snipers to Ruby Ridge.

Beorn said...

But if/when there are five liberal Justices, you can bet the farm the 2nd Ammendment will be reinterpreted.

Ignorance is Bliss said...

...[T]he U.S. is in the midst of a flurry of new efforts to control people’s access to firearms. ...The major problem is simple: The Second Amendment has come to be seen as a constitutional barrier, and perhaps even more, a political one.

That's the fucking point.

That's why it's there.

To be a barrier.


virgil xenophon said...


Oh, but you are very, VERY wrong! All it takes to reach the authoritarian/totalitarian "solution" is but the change of a single appointment/vote on the SCOTUS--which is why this upcoming election is SO vital!

virgil xenophon said...

Hi Beorn, was typing furiously away and didn't see your post!

Sebastian said...

"how does that mean that one set of voices rewrites a clause in the Constitution?" . . . "shocking "never mind""

Faux shock, right?

Prog doesn't like what's left of the old Constitution, attacks by doing what he accuses its defenders of doing, but ends up with hot air and specious arguments: par of the course at Harvard, no?

It's all battle space prep for getting the fifth vote. At which point the AAs of the legal world will fall in line quickly enough by providing after-the-fact rationalizations showing that issues entirely uncontemplated by the Constitution are in fact required by it while explicit provisions about the "right of the people" were empty phrases all along.

Ann Althouse said...

@Karen of Texas

Yes, that sentence was missing a "not." I regret the error! Fixed.

Laslo Spatula said...

The safest place to keep a gun is in a uterus.

I am Laslo.

Ignorance is Bliss said...

A quick quiz: In what century did the Supreme Court first rule that people have an individual right to own guns? The answer is the 21st century.

You know why the court never ruled that in the 18th or 19th centuries? Because nobody ever came to them with a case trying to argue the opposite.

However, in the 19th century, it did say this:

In United States v. Cruikshank (1876), the Supreme Court of the United States ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence"

phantommut said...

"The Second Amendment, Militias, and Standing Armies: A Study in the Self, Community, and National Scopes to a Right of Defense"

That would make a hell of a book.

Rick said...

Chris N said...
So, what's the point of the piece?

He is allowing confiscators to use his name in their appeals to authority knowing none of them care about the misleading elements and their targets won't read the piece. He adds the concession to reality to give himself and his co-activists a fig leaf of defense among his fellow legal professionals who might criticize his lack of professionalism (like Althouse).

Bay Area Guy said...

The Supreme Court, thankfully, has been very good on the First and Second Amendments. Heller is a rock solid decision that the Left really, really doesn't like. Sunstein's piece is pretty weak.

madAsHell said...

Cass Sunstein is married to Samantha Power. She is the Obama's delegate to the UN.

Wasn't she marched out to proclaim the guilt of the Benghazi video producer??

....and now, in the light of the Roseburg massacre. They send out her husband to say something equally as foolish???

Known Unknown said...

Do we have to trot out the founding father quotes once more to prove the point again?

Does Sunstein not read?

Big Mike said...

Prominent Lefties can reason from A to B, and sometimes from B to C, but never from A to C.


mccullough said...

He doesn't address the serious arguments that persuaded the Supreme Court in 2008. A schilaber for the antigun lobby.

Roughcoat said...

Agree with Bob Boyd.

Any attempt to confiscate firearms will, and should, cause a shit storm. Maybe push the nation past the tipping point. I'll be in the thick of the fight. This is the hill to die on, and I suspect that vast numbers of Americans share this view.

Molon labe.

285exp said...

Somebody needs to punch Cass in the dick.

Mick said...

The propaganda spewed by the usurper's surrogates is thick.

BrianE said...

The law is settled.

It's past time for debate on this issue.

Maybe it's time to jail those who continue to try and undermine this settled law.

Quaestor said...

Somebody needs to punch Cass in the dick.

That'll need to be someone with excellent marksmanship.

Todd said...

Quaestor said...
Somebody needs to punch Cass in the dick.

That'll need to be someone with excellent marksmanship.

10/8/15, 11:09 AM

Why? His face looks like a plenty big target.

LOL, see what I did there? I implied that he, in his entirety is a "dick" and so hitting him in his face qualifies. Just kidding, really. I don't wish violence on anyone due to their impotent, illogical, childish thoughts and ideas. On the other hand, I do hold political leaders to a higher standard as they are in a position to affect our lives and country. I know a few politicians that I would not shed a tear for if someone were to "punch them in the dick". Alas, we still live in a representative democracy and as such people are entitled to be represented by whatever horse's ass can manage to get elected. It is just such a shame that those asses have to be fostered onto the rest of us too.

rick said...

It has been twisted to be about guns for self protection.The word guns or self protection are not even mentioned. The founders had just come off a war with the government fighting with every arm the government had.It was not their intention to tie militias hands against tyrants and the enemy and limit them to guns, much less of a certain capacity or caliber.

Marty Keller said...

In a close call, it's BrianE for the thread!

SeanF said...

Althouse: ...old case law that failed to perceive an individual right.

That old case law he's talking about, U.S. v. Miller, never even looked at the issue of an individual right. SCOTUS decided in that case that the 2nd Amendment didn't apply to the particular weapon, saying that that weapon was not in common military use. They never said it didn't apply to Miller because he wasn't part of any "militia."

The fact that that case didn't "perceive an individual right" to keep and bear arms is just as meaningless as the fact that Hobby Lobby v. Burwell didn't perceive such a right.

damikesc said...

Hanging the second amendment as a right limited to militias proved to be a very bad idea.

Aren't there separate Constitutional provisions involving establishment of a military? It would seem odd that the drafters would be into redundancy in this one instance.

Gahrie said...

You have to know your history in order to fully understand the Second Amendment.

First, European rulers usually made it illegally for peasants to own weapons so that it was easier to control them. The Founding Fathers wanted an armed populace so that the government could not be a tyranny.

Secondly, the Founding Fathers intended that there be no standing army in time of piece, and instead an armed populace would defend the country while the army was being formed.

Thirdly, until at least the Spanish-American war, it was quite common for private American citizens to own military arms, and form military units from their own resources. Private citizens built and operated warships armed with the latest naval weaponry. They bought cannons and formed artillery units.

Regulation of weapons owned by private citizens did not begin until prohibition and the rise of organized crime.

Bilwick said...

For years, Sunstein has tried with Thomas Frank for the State Fellator of the Year Award, but this could put him over the top! Congrats to Mr. Sunstein and a "Nice Try" to Mr. Frank, Robert Cook and garage mahal! Better luck next year, guys!

JackOfClubs said...

A formulation that could salvage the "rewrite" language from the headline would be: Cruikshank and the Slaughterhouse decisions "un-wrote" the 2nd Amendment as an individual right and the Heller/McDonald decisions "re-wrote" it. That still wouldn't work unless you consider Scalia and Alito part of the "Gun Lobby". It wouldn't surprise me to hear folks on the left making even that claim, but Sunstein is usually a little more sensible.

Bruce said...

"The text of the Second Amendment is ambiguous"

I don't think it's really very ambiguous at all; I just think he doesn't agree with the plain meaning of the words.

BN said...

"...how does that mean that one set of voices rewrites a clause in the Constitution?"

Lol. What do you do for a living again?

JCC said...

All this excitement for a piece from Cass Sunstein? The guy is a walking advertisement for government authority to do whatever it wishes. Sunstein is the scholar who thinks constitutional law issues should be settled not by judges, but by the mindset and philosophy of the sitting U S president. How would that work out these days? Sunstein also has written that the Bill of Rights is a flexible thing, subject to manipulation and regulation according to the same (yep!) sitting U S president. Freedom of speech, guaranteed by the 1A? Nope, not according to Cass. The president can abrogate that with his pen.

Scary stuff. This man is a closet Nazi, for real, not in the National Socialist bent, but certainly in the sense of an absolute ruler with no limitations on his authority (presumably said supreme leader being, of course, of the same political mindset as Cass). I doubt he'd be supportive of a Republican with the Big Pen.

But the point remains, who cares what this guy thinks or says? He's a legal twit with a big vocabulary.

Rusty said...

Roughcoat said...
Agree with Bob Boyd.

Any attempt to confiscate firearms will, and should, cause a shit storm. Maybe push the nation past the tipping point. I'll be in the thick of the fight. This is the hill to die on, and I suspect that vast numbers of Americans share this view.

Molon labe.

Not going to happen that way. Just logistically it would be a nightmare. 100 MILLION gun owners. Keeping in mind the government can't legally use the military, just who and how many people could they muster to do the confiscation?
Not going to happen.
Thgey'll use legislation to restrict ammunition.
Or try to. Ammunition is also protected under the 2nd.

Roughcoat said...


Not going to happen? Probably not. But watch out for slippery slopes and all that.

Remember: the Battle of Lexington took place, starting the War of Independence, because British troops came to seize the town's black powder stores. In those days every town and village kept a supply of black powder on hand, stored in stone blockhouses. Originally those stores were laid up in case of Indian attack. When the Redcoats announced their intention to confiscate their powder stores at Lexington, the colonials recognized this move for what it was: the first step on a slippery slope to disarm them.

Rusty said...

And, Rough. The end result today would be the same. It would only take 1/2 of one percent of that 100 million number to actively organize against such a move to shut it all down. The liberals know this and so want to incrementally squeeze gun owners with more and more "reasonable" laws. More and more narrow definitions of what constitutes a "responsible gunowner".

We are slowly wreatling the narritive away from the Brady Bunch. But, like them, we must resolve to commit ourselves to the long haul-generations. Their ignorance about firearnms works to our advantage. Their ignorance about the 2nd amendment works to our advantage.

And it isn't just about guns. It is about neutering the whole of the Bill of Rights.

Roughcoat said...

The liberals know this and so want to incrementally squeeze gun owners with more and more "reasonable" laws. More and more narrow definitions of what constitutes a "responsible gunowner".

Yep. That's the slippery slope I referred to. The "seizing the powder" reference is meant metaphorically. Neutering the 2nd Amendment and the rest of the Bill of Rights is constitutes seizing the powder. As the saying goes, it happens slowly (i.e. incrementally), and then ... suddenly.