Nelson Lund article
Just finished Nelson Lund's "Putting the Second Amendment to Sleep," 8 Green Bag 101. It's a deservatively negative review of two books which were intended as critiques of the individual rights view. Details in extended entry below.
The first -- Uviller & Merkel's "The Militia and the Right to Arms, or How the Second Amendment Fell Silent." They argue that the real meaning of the Amendment is essentially "for as long as private arms are necessary to a well-regulated militia, the right of the people TKBA shall not be infringed." Since they judge that such arms are no longer necessary to that end, they conclude the Amendment has somehow become a "vacant and meaningless sequence of words."
Lund takes the conclusion apart. First, the words do not carry that meaning: the operative part of the Amendment is the declaration of the right of the people. Second, there is not a speck of historical evidence that anyone in the generation of the Framers thought this was the meaning. Third, there is no logical basis for declaring that a constitutional right vanishes if someone (either the authors of the book or, for that matter, the Supreme Court) decides it no longer serves its original purpose. (I might add that the right to petition the legislature probably has lost its original purpose. The early Congresses took petitions quite seriously -- to the point where pro-slavery legislators tried to bar consideration of anti-slavery petitions. Petitioners were ordinarily read on the floor and sometimes inspired debate. Today if you sent a petition to Congress, it is a matter of little moment).
What is somewhat amusing is that Uviller and Merkel cite Michael Bellesilles extensively as a historian ... oops. (For those not in the know, Bellesilles resigned his professorship, and his publisher withdrew his book, after discovery that it was a massive academic fraud). They sniff at Prof. Joyce Malcolm, who has endorsed the individual rights view: she is merely a prof. at an undergraduate, largely business, college. (I wish Lund had pointed out she's a fellow of the Royal Historical Society, did her research into original materials in Britain, held fellowships from Harvard and the American Bar Association, etc. He does point out that her book was published by Harvard University Press).
David Williams' "The Mythic Meanings of the Second Amendment" has a similar theme although his approach is, well, a bit spacey. He essentially argues that Americans of the framing period had a unified culture from which a universal militia was a natural outgrowth. (Exactly where events such as Shay's Rebellion, the fighting between Tories and Patriots, the suppression of Baptists in Virginia and elsewhere, and the Alien and Sedition Acts fit into this unified culture is unclear -- in many aspects our culture today is more unified than what the Framers knew). But, he argues, modern America is divided and private armament pose the risk of a bloodbath instead. (Where this gets us in constitutional interpretation remains a bit unclear). We might note that the "militia movement" of the 1990s came and went with no noteworthy violence (as Lund points out, the same cannot be said of Earth First!, the Animal Liberation Front, etc.).