Under Fire: The New Consensus on the Second Amendment (original) (raw)

Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment.[4](p.1142) According to the broad individual right view, the right of the people to keep and bear arms is to be treated the same as the other rights of the people specified in the Constitution-no more and no less. Like the other rights mentioned in the Bill of Rights, it is a right to be asserted by individuals against infringement by government. Like other rights in the Bill of Rights, it is not absolute, but neither is it a hollow shell which legislatures can ignore with impunity. Nor does it merely refer to the right of a state to have a militia, as many, perhaps most, law professors assumed before there was serious scholarship on the Second Amendment. Despite this scholarship, on May 2, 1994, the broad individual right view was denounced as a gun-lobby "fraud on the American people" by twenty-six law professors in an advertisement sponsored by an anti-gun group which appeared in the American Lawyer and other publications.[5] The only authority they cited supporting their view was a quotation from an article by former Chief Justice Burger in Parade magazine.[6] Though a number of signatories are distinguished scholars, significantly, none had ever delved into the issues sufficiently to publish a scholarly article on the subject. One of them has repaired that deficiency by writing (the all-too-appropriately named) Gun Crazy,[7] the first article to appear in an important law review in almost thirty years disputing this now-predominant individual right view of the Second Amendment. As Gun Crazy presents it, the near-unanimous consensus among historians and legal scholars who have researched the issues is an artifact of a sinister concerted effort by pro-gun professors and fellow travelers. Gun Crazy argues that the gullible legal and scholarly communities are falling victim to a gun-lobbyorganized conspiracy "to flood the law reviews with friendly scholarship from sympathetic law professors."[8] Our aim in this Article is twofold: First, we intend to put the academic discussion of the Second Amendment back on its constructive path by rebutting charges made in Gun Crazy against scholars who have contributed to the new consensus that the Second Amendment protects an individual right. To that end, in Part I, we discuss in detail the false charges of dishonesty and (p.1143)conspiracy that Gun Crazy levels against scholars whose views it finds uncongenial. In Part II, we examine the factual errors in Gun Crazy. Second, we present the textual, structural, historical, and criminological evidence that supports this new consensus; evidence about which most academics, even those who write about other areas of constitutional law, are largely unaware. In Part III, we examine the merits of the interpretation proferred by opponents of an individual right to keep and bear arms: the militiacentric conception of the Second Amendment. We analyze how textual, historical, and structural considerations each argue against such an interpretation and in favor of an individual rights approach. Finally, in Part IV, we consider the issue that is really motivating those who reject an individual rights interpretation in favor of a militia-centric conception of the Second Amendment: the allegedly adverse effect of gun ownership on public safety. Here we present the latest findings of criminologists on the effects of guns and gun ownership on violence. I. Ad Hominem Attacks on Legal Scholars Gun Crazy portrays the near-unanimous scholarly literature as "pro-gun lobby" propaganda. One of Gun Crazy's tactics is to reject twenty-five law review articles defending the individual right view as biased per se. These are articles by nonacademics whom Gun Crazy identifies as employees of the NRA and other pro-gun groups or whom Gun Crazy denigrates as "[g]un-rights litigators and activists,"[9] "leading gun-rights litigators and lobbyists,"[10] and "warhorses."[11] At the same time, Gun Crazy derives its substantive arguments on the Second Amendment from the handful of articles on the other side which it cites without ever informing readers that their authors are officers or paid employees of anti-gun groups.[12](p.1144) It is unnecessary to quibble over the matter for, even when the articles by nonacademics are deducted, the consensus among full-time law professors and other academics who have studied the matter still overwhelmingly supports the broad individual right view of the Amendment.[13] Based on the criteria it (p.1145)selects, post-1972 law review articles by law professors, Gun Crazy and just one other law review article deny the broad individual right view.[14] Several more law professor-authored articles catalog positions taken by each side without themselves supporting either,[15] and there is also student work on both sides.[16] After our manuscript was written, but before its publication, we became aware of the existence, or impending publication, of several more law review articles. Though the authors are not associated with the gun lobby, all support the broad individual right position.[17](p.1146) Gun Crazy suggests that "one's scholarly views of the Amendment are determined primarily by one's position on gun control."[18] This is demonstrably false, at least with respect to those scholars who support the individual right interpretation. The great majority of historians and law professors who have written on the subject have never owned a gun in their lives and do not desire to own guns or to have any association with the gun lobby. Their motivation is primarily one of simple intellectual integrity, but there is a secondary motivation as well: the need to take rights seriously, even rights with which they may not agree.[19] Many of these professors have long been closely associated with the ACLU and the NAACP Legal Defense and Education Fund, Inc. As former ACLU national board member Alan Dershowitz has said: Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.[20](p.1147) To discriminate among the constitutional rights that one is willing to defend is ruinous to the credibility of those who exhort or hector public officials to honor rights with which those officials may disagree or which they may wish to disregard.[21] We recognize, incidentally, the novelty and inappropriateness of discussing such personal matters in a scholarly forum. That only illustrates the unfortunate effect of Gun Crazy's descent into falsehood, guilt by association, and character assassination as modalities of legal analysis. Of course, some of the scholars Gun Crazy assaults do entertain views on firearms policy that differ from those of Gun Crazy's author, but this does not impugn their scholarship on the Second Amendment. Moreover, Gun Crazy misrepresents their views by portraying them as "gun lobby" stooges and champions of pro-gun irredentism. In fact, at least two scholars it so assaults argue that the great majority of the public, including most gun owners, recognize the need for sensible gun controls-and that this majority is dissipated because gun owners are driven into the arms of the NRA by the extremist anti-gun goals and vituperative rhetoric that Gun Crazy epitomizes.[22] Gun Crazy describes itself as "an Article about ... deceit, misperception, and dereliction of responsibility ...."[23] As we shall show in this Part and in (p.1148)Part II, Gun Crazy is projecting its own deficiencies onto those who share the individual right view of the Second Amendment. First, Gun Crazy repeatedly harps on the need for truth, the virtues of truth, and the "dialogic responsibility"[24] of scholars, politicians, and journalists to tell the truth. But the truth is that Gun Crazy presents a pastiche of ignorant and/or careless factual errors, outright lies, halftruths, suppressed facts, tendentious reasoning, ad homines, epithets, and assumed premises conveyed in hyper-emotional verbiage. The most charitable view that may be taken of many of Gun Crazy's assertions is that the article is beset by its own slovenly research and by credulous dependence on partisan sources whose partisanship Gun Crazy conceals from its readers. Second, Gun Crazy solemnly speculates that the reason so few law professors have been willing to speak out against the gun lobby may be that "real political controversy and ugly cross-talk, may simply be too off-putting for the taste of many in the legal academy."[25] The fact is that Gun Crazy is a paradigm of irrelevant "ugly cross-talk" and ad homines in the law review debate over the Second Amendment. Its apparent purpose is to deter the publication of politically incorrect scholarship by heaping calumny and vituperation on scholars whose research has led them, however reluctantly, to conclusions it finds uncongenial. Although Gun Crazy also advances arguments for its militia-centric view of the Second Amendment (which we examine below),[26] these consist in a rehash of the points made in more obscure articles published by paid advocates for anti-gun groups-whom Gun Crazy does not so identify, though it takes great pains to so identify articles by NRA employees. Indeed, we hasten to note that, despite the notorious acrimony of the popular gun debates, rival expositions of the Second Amendment by paid employees of anti-gun and pro-gun groups are far more honest and intellectually compelling than is Gun Crazy, and they have in the main not resorted to the epithets, ad homines, and falsehoods...