published 8/27/99

Scholar's shift in thinking angers liberals

By Tony Mauro

"the federal government may not disarm individual citizens without some unusually strong justification."

Publication of the first volume of a revised edition of a legal treatise would not ordinarily make news.

But even before it began arriving at law schools last week, Laurence Tribe's American Constitutional Law was causing a stir.

Tribe, a Harvard law professor who is probably the most influential living American constitutional scholar, says he has already gotten hate mail about his new interpretation of the right to bear arms contained in the Second Amendment.

Relegated to a footnote in the first edition of the book in 1978, the right to bear arms earns Tribe's respect in the latest version.

Tribe, well-known as a liberal scholar, concludes that the right to bear arms was conceived as an important political right that should not be dismissed as "wholly irrelevant." Rather, Tribe thinks the Second Amendment assures that "the federal government may not disarm individual citizens without some unusually strong justification."

Tribe posits that it includes an individual right, "admittedly of uncertain scope," to "possess and use firearms in the defense of themselves and their homes."

None of Tribe's new thinking changes his view that gun-control measures are "plainly constitutional," but his shift has been enough to anger gun-control advocates.

"I've gotten an avalanche of angry mail from apparent liberals who said, 'How could you?'" Tribe says. "But as someone who takes the Constitution seriously, I thought I had a responsibility to see what the Second Amendment says, and how it fits."

Tribe's views on the Constitution are of more than passing importance.

Earlier editions of Tribe's treatise have been quoted more than 50 times in Supreme Court opinions - by liberal and conservative justices - and by the top courts of India, Germany, Russia and Canada, among others.

The new edition also deals with the law on impeachment developed from President Clinton's trial, as well as the Supreme Court trend cutting back on congressional power.

"He has an audience well beyond law students," says Drake University law professor Tom Baker, who assigns Tribe's book to students. "For Larry Tribe to say that there's more to the Second Amendment than originally thought is very important, and reflects an open-mindedness that some don't expect."

Glenn Harlan Reynolds of the University of Tennessee adds: "He legitimizes this whole new body of scholarship, and it will force judges and others to face the issue on its merits."

At the usually conservative law school at Pepperdine University, professor Douglas Kmiec recommends the book to "the very best students." On the Second Amendment, Kmiec says, Tribe's book offers "a fair and evenhanded appraisal of what is still an inconclusive right."


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28 August 1999