In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment's "right to keep and bear arms." Burger answered that the Second Amendment "has been the subject of one of the greatest pieces of fraud-- I repeat the word 'fraud'--on the American public by special interest groups that I have ever seen in my lifetime." In a speech in 1992, Burger declared that "the Second Amendment doesn't guarantee the right to have firearms at all. " In his view, the purpose of the Second Amendment was "to ensure that the 'state armies'--'the militia'--would be maintained for the defense of the state. "

It is impossible to understand the current Second Amendment debate without lingering over Burger's words. Burger was a cautious person as well as a conservative judge, and the chief justice of the Supreme Court is unlikely to offer a controversial position on a constitutional question in an interview on national television. (Chief Justice John Roberts is not about to go on Fox News to say that the claimed right to same-sex marriage is a fraud on the American people perpetrated by special interest groups.) Should we therefore conclude that Burger had a moment of uncharacteristic recklessness? I do not think so. Burger meant to describe what he saw as a clear consensus within the culture of informed lawyers and judges--a conclusion that was so widely taken for granted that it seemed to him to be a fact, and not an opinion at all.

Flash forward to this past March, when the United States Court of Appeals for the District of Columbia Circuit enthusiastically embraced the very view that Burger had described as a "fraud." In the process, the court struck down several handgun restrictions in the District of Columbia. And so the Supreme Court is now being asked to decide whether the Second Amendment creates an individual right to own guns. There is a decent chance that the Court will say that it does. Whatever the Court says, we have seen an amazingly rapid change in constitutional understandings--even a revolution--as an apparently fraudulent interpretation pushed by "special interest groups" (read: the National Rifle Association) has become mainstream. How on earth has this happened? Was Chief Justice Burger just wrong?...

Arnold Shcherban - 11/28/2007

The title hardly calls for any comments... when thought of by any intelligent folks, who know the facts of contemporary societal life.

David T. Hardy - 11/27/2007

1. I have no doubt that Prof. Sunstein and I would agree that Warren Burget got a LOT of constitutional issues wrong, even when he (or his clerks) studied them.

2. I rather doubt he put much study into that statement.

3. The argument, no reasons given, is purely one from authority. If that is the case, I'll take William van Alstyne, Akhil Amar, Michael Kent Curtis, and Sanford Levinson over Warren Burger, any day.