There is another view.
Tribe has authored three editions of "American Constitutional Law" which is now a two-volume text for teaching constitutional law at Harvard.
He has also written a number of other books and law review articles, given dozens of lectures and appeared before the Supreme Court in many cases, frequently successfully.
His single most high profile activity was to coach Sen. Biden in the interrogation of Supreme Court nominee, Robert Bork. He brought Bork's nomination down with one question, the first put to Bork by Biden.
The question was, in some fashion, as follows: "Judge Bork, do you believe that the text of the U. S. Constitution contains a right to privacy." Bork said "No" (because, of course, the U. S. Const. does not have the word "privacy" in it) and was toast.
Tribe's views on constitutional interpretation are reflected in many places, but the easiest (i.e., the shortest) version is a 135 page text entitled "On Reading The Constitution," published in 1991 by the Harvard University Press.
The debate over a "strict" vs. a "liberal" CONSTRUCTION of the constitution, particularly when it relates to individual rights, is resolved, in Tribe's view, by reference to the Ninth Amendment("The enumeration in the Constitution of certain rights shall not be CONSTRUED to deny or disparage others retained by the people.")
Tribe's view of the Ninth Amendment, stated on p. 54 of his book, is that the Ninth Amendment does not create rights, per se, but is instead a rule of construction, in fact the only rule of construction in the constitution.
That rule of construction cannot be advanced, Tribe argues, to support an argument that rights don't exist merely because they are not explicitly recited in the text of the Bill of Rights.
Tribe got a lot of ink recently for simply recognizing that a plausible argument can be made for the notion that the Second Amendment contains a right to bear arms for individuals vs. states. The flurry of interest was apparently the result of a comment in a footnote numbered 220 on pages 901 and 902.
This LONG footnote in an area of the book pertaining to federal state relations (the Second Amendment will be addressed directly in Volume II which is not out yet) states, among other things, that:
"Perhaps the most accurate conclusion on can reach with any confidence is that the Second Amendment is a populist/ republican/ federalism one: Its central object is to arm "We the people" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal govenment to arm the populace as they see fit. Rather, the amendment acheves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consisting with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearm in the defense of themselves and their homes -- not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons -- a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by Sec 1 of the Fourteenth Amendment against state or local government action."END OF FOOTNOTE.
Tribe states unambiguously that most forms of gun "control" would, in his view, pass constitutional muster -- control being read not to authorize confiscation -- and states, accurately, that "the jurisprudence of the Second Amendment is radically underdeveloped."
Tribe has altered his views on the second amendment, primarily because he appears to have read more about it. He specifically cites in footnote 211 a long list of relatively new publications, all on interpretation of the second amendment, including: "That Every Man Be Armed" by S. Halbrook, "To Keep And Bear Arms: The Origins of the Anglo-American Right" by J. Malcolm, "Handgun Prohibition And The Oiginal Meaning of the Second Amendment" by D. Kates, "The Embarrassing Second Amendment" by S. Levinson, and on and on and on.
It is a little hard to criticize someone for being willing to reexamine their views. If he ultimately turns out to be an ally in preservation of Second Amendment rights, he will have been the single most important convert for the simple fact of the prominence of his position in the academic world.
[This message has been edited by abruzzi (edited November 03, 1999).]
