By David Hardy

Sanford Levinson is McCormick Professor of Law at the University of Texas. He's an author of numerous constitutional textbooks, frequent contributor to the Supreme Court Review, and a recognized authority on American constitutional law.

In his article "The Embarassing Second Amendment," 99 Yale Law Journal 637 (1989), he begins by noting that Prof. Bobbit has proposed six approaches to constitutional interpretation: 1) Literal text; 2) Historical context; 3) Structural derived from the entire constitutional structure; 4) Doctrinal from Supreme Court rulings; 5) Prudential or policy derived from desired or undesired results; 6) Ethical from the ethos of limited government.

Prof. Levinson suggests the last does not play a special rule in second amendment interpretation, and that the first five approachs all lead to an individual rights view.

Literalismhas problems in the Bill of Rights context. After all, if "freedom of speech" is read literally, we could not punish fraud. Here, one could read the militia section as a limiting statementbut then "one might ask why the framers did not simply say something like 'Congress shall have no power to prohibit state-organized and directed militias.'"

History: framers used "right of the people" to designate individual rights in the first fourth, ninth, and tenth amendments, not rights of states. And even if we were to say the second amendment was aimed at "militia," "There is strong evidence that the 'militia' refers to the entire people, or at least all of those treated as full citizens of the community." He refers to writings of James Harrington and other English republicans to suggest that the primary objective of the militia system was to protect political freedom *against one's own governments* should they become corrupt.The very purpose was to ensure that the traditional definition of governmenta legal monopoly on forcewould not be the American situation.That suggests that, *even if* we take the militia section to predominate, the result is the same as proclaiming a general and individual right to arms. The purpose is to have universal citizen armament, whether expressed as a freedom or as a miltiia duty.

Structure: The collective rights view errs in assuming there are only two components to the American system of governmentstates and federaland that the second amendment was only meant as protection in that relationship. In fact there are three levels. "It ignores the implication that might be drawn from the second, ninth, and tenth amendments: the citizenry itself can be viewed as an important third component of republican governance, insofar as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter. One implication of this republican rationale for the second amendment is that it calls into question the ability of a State to disarm its citizenry..." Levinson points out that Madison, in Federalist 10 and 14, suggests that federalism guards liberty because, should *either* level of government become oppressive, the people will rally to the other and make it predominate. The suggestion is that the people at large form a third component of government, and may be called upon to reinforce either of the other two. That suggests that neither of the two levels of government should be able to establish a true legal monopoly of force as against the citizenry.

Doctrine: Levinson discusses Miller: "It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress." In fact, he suggests, if Miller were read literally it would be taken to hold "that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare."

Prof. Levinson digresses into incorporation, suggesting that there should be no real question. If the second amendment is purely a state right, there is nothing to incorporate. If it is an individual right, it is hard to see why it wouldn't be incorporated; "Why should Cruikshank and Presser be regarded as binding precedent any more than any of the other 'pre-incorporation' decisions refusing to apply given aspects of the Bill of Rights against the States?"

Prudentialism: Levinson notes that the standard argument for gun control is, of course, that gun control would save many lives, leading to a policy argument: the constitution ought not to protect something with extraordinary social costs. Circumstances have changed, and the constitution ought to change. He responds that while he has some sympathy for this argument, there may be a question as to whether the nature of governments have changedexcept that while 18th century governments might kill hundreds of opponents, 20th century ones kill millions. Republican and democratic theory remains the same, and men (including those who command governments) remain the same. "In any event, it is hard for me to see how one can argument that circumstances have so changed as to make mass civilian disarmament constitutionally unproblematic."

Finally, Prof. Levinson discusses the need to take the second amendment seriously. He notes that individual and groups which are considered civil libertarian or liberal seem perfectly immune to the "it makes good policy" arguments when what is being discussed is freeing a confessed rapist because the officer did not read him a few sentences; yet when the issue becomes a gun law, they instead argue that the result, and fighting crime, are all-important. He concludes:

"For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy."