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Don Kates on the NY Times piece
Rec'd an email from Don Kates, via Dan Gifford:
"The pervasive inaccuracy of the N.Y. TIMES on gun issues is epitomized
by the fact that the article that follows is probably the most honest
treatment it has ever given a gun issue – and yet is still fundamentally
misleading.
From the article the ordinary reader would come away with the following
impression: 1) from its enactment in 1791 to roughly 1980 everyone
viewed the 2nd Am. as a states right (or a meaningless "collective
right"); 2) since c. 1980 a few ivory tower intellectuals have theorized
that the 2nd Am. might be a right of individual gun owners; 3)
nonetheless the great majority of authorities say that is wrong.
The truth is almost diametrically opposite:
1) From its enactment till the outset of the 20th Century gun control
movement there was no controversy over the 2nd Am. – not one court or
commentator denied that it was a right of individual gun owners. 18th
and 19th Century judges and commentators routinely described it as a
right of individual gun owners and expressly analogized it to the rights
of freedom of speech, religion, jury trial etc., etc.
2) The states’ right and collective rights theories are inventions of
the 20th Century gun control movement having no historical
constitutional provenance whatever. Far from the 2d Am being a states’
right, 200 years of Supreme Court cases on the militia hold that the
federal government has plenary power over it with state authority being
limited to issues on which Congress has not spoken.
3) Over 120 law review articles have addressed the Second Amendment
since 1980. The overwhelming majority affirm that it guarantees a right
of individual gun owners. That is why the individual right view is
called the "standard model" view of the 2d Am by supporters and
opponents alike. With virtually no exceptions, the few articles to the
contrary have been written by gun control advocates, mostly by people in
the pay of the anti-gun lobby. In contrast, a very substantial
proportion of the standard model articles are written by scholars who
ruefully admit that they support gun control but must honestly admit
that the evidence is overwhelming that the 2d Am precludes banning guns
to the general population."
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