Now endlessly cited by scholars and distributed by the National Rifle Association, Levinson's article makes him a slightly reluctant founder of what has come to be called the "Standard Model" of Second Amendment scholarship. Much of Levinson's argument in "The Embarrassing Second Amendment" was aimed at his own ideological allies.
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Citing a vast gap in the scholarly literature--only the obsolete Third Amendment, banning the peacetime quartering of troops in private homes, had drawn fewer studies at the time of his writing--Levinson accused fellow liberal legal scholars of ignoring the Second Amendment for fear of what they might discover. As Levinson points out, legal scholars have paid attention to just about everything else: "Is 'lookism' covered by the Fourteenth Amendment?
I don't think it's uninteresting, but there's a reason why elite academics are more inclined to write that kind of piece than a piece on whether the NRA might have something to be said for its position. According to Levinson's "individual rights" interpretation, the amendment's preamble "A well regulated Militia, being necessary to the security of a free State" does not constrain the interpretation of its subsequent language "the right of the people to keep and bear Arms, shall not be infringed".
On Levinson's reading, the amendment primarily empowers individual American citizens to own guns for self-defense and, if necessary, to counter government tyranny by means of armed popular resistance.
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Other scholars and judges, however, have argued for a "collective rights" view that emphasizes the amendment's opening clause. According to this reasoning, gun ownership would be protected only in the context of a state militia, such as the National Guard. Miller , has been read by a number of federal courts as enshrining the collective-rights position and, by implication, opening the way to robust gun-control legislation. In the decade following the publication of Levinson's "The Embarrassing Second Amendment," however, legal scholars have turned en masse to the contrary individual-rights view, filling law reviews with what may be more than a hundred articles defending this position.
Citing this growing literature in his introduction to a Tennessee Law Review symposium on the Second Amendment, the University of Tennessee law professor Glenn Harlan Reynolds cribbed from physics to pronounce the individual-rights reading the "Standard Model" for interpreting the amendment.
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The name stuck. Citing this growing literature in his introduction to a Tennessee Law Review symposium on the Second Amendment, the University of Tennessee law professor Glenn Harlan Reynolds cribbed from physics to pronounce the individual-rights reading the "Standard Model" for interpreting the amendment. The name stuck. Today, the Standard Model appears to be on the verge of graduation from the law review to the courthouse.
Citing Standard Model scholarship, a Texas judge recently made a decision that may force the first major Second Amendment precedent in the sixty years since Miller. This past April, just before the Columbine shootings brought gun control to the top of the nation's agenda, federal district court judge Sam R.
Cummings delivered an unprecedented ruling in defense of the individual's right to bear arms.
Now on appeal, U. Emerson will be heard this spring in New Orleans by the U. Court of Appeals for the Fifth Circuit. If Cummings's Standard Model ruling is upheld there, the case stands an excellent chance of reaching the Supreme Court, where another individual-rights ruling could effectively shift the burden of proof in future gun-control debates.
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