Harvard Law School Professor Mark Tushnet and Clark Neily, senior attorney at the Institute for Justice, squared off about Second Amendment rights yesterday afternoon in an event sponsored by the HLS Federalist Society.
“I don’t think you need the Second Amendment to understand properly the ability to keep a gun,” said Neily in his remarks, which opened the debate. “Your ability to own a particular object comes down to whether or not the Court has established ownership of that object to be a fundamental right on the one hand or a non-fundamental right on the other. Guns are just objects, like any other object.”
Neily was co-counsel for the plaintiffs in the recent Parker v. District of Columbia case, which challenged the constitutionality of Washington, D.C.’s gun laws. In a landmark decision in favor of gun rights, the U.S. Court of Appeals for the D.C. Circuit struck down the ban on handguns in the Parker ruling last March.
Although admitting that the Constitution and legal precedent on the issue of gun control is very unclear, Tushnet argued against Neily’s position, which emphasized individual rights.
“The Second Amendment has been on the books for over two centuries, and until March of this year, no gun control policy has been struck down on Second Amendment grounds ever in our history,” Tushnet said. “That’s not a formal precedent for a variety of reasons, but one might call it a ‘tradition’ of being completely deferential to legislative decisions regarding gun control.”
Tushnet is a leading Constitutional law expert and is the author of the recently released book titled “Out of Range: Why the Constitution Can’t End the Battle over Guns.” In a recent Harvard Law Bulletin article, Tushnet further discussed the meaning of the Parker case.