WHY THE SECOND AMENDMENT IS A LOSER IN COURT

By Andrea Sachs

The Second Amendment is like a Rorschach test: observers tend to examine it and discover whatever they already believe about gun control. Gun-rights groups like the N.R.A. are Second Amendment absolutists who believe that the 27-word passage bestows an inviolable right to own and carry guns. Gun-control advocates, on the other hand, tend to view the amendment as a dusty historical relic. For almost everyone else, the wording of the amendment is puzzling: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Which part of the amendment is binding: the antiquated language about militias, or the broad language about the right to bear arms?

While that question produces hot debate in the public arena, gun-rights advocates know better than to wield the Second Amendment in court. No federal gun-control law has ever been struck down on Second Amendment grounds. "The Second Amendment's preamble makes it clear," explains Harvard law professor Laurence Tribe, "that it is not designed to create an individual right to bear arms outside of the context of a state-run militia." As a consequence, Congress has been free to limit gun ownership and sales.

Most law professors give the amendment the same limited reading. But there is a dissenting minority. In a widely noted article in the Yale Law Journal in 1989, Professor Sanford Levinson of the University of Texas, who describes himself as "a card-carrying A.C.L.U. member who doesn't own a gun," argued that the Second Amendment limits the government's authority to regulate the private possession of arms. Says Levinson: "Liberal academics view the Second Amendment as an embarrassment, like the drunken uncle who shows up at the family reunion. They would never be so cavalier about an amendment they like." The N.R.A. was so delighted by Levinson's unexpected article that the group reprinted thousands of copies, which prompted a wave of fan mail for the professor.

--By Andrea Sachs