« Not so smooth, and very lucky | Main | Study on microstamping firing pins »
NY Times acknowledges change in 2nd amendment scholarship
When even the New York Times acknowledges the change in scholarly perception of the 2nd Amendment, you know it has arrived.
They overstate the change a little: "There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists..." Judicial (at least lower courts) yes, but scholarly, not really. When I started writing law review articles in 1974, there were only a handful of articles, none of any note, and most of those were "collective right." I just wouldn't count, and I guess here at the number, three of the five articles as "an almost complete consensus." More like "a handful of people had written on it, and a majority of those took the collective rights view."
Of course, NY Times does give Brady Center's spin, which is FAR off the real situation, big play: "The individual rights view is far from universally accepted. “The overwhelming weight of scholarly opinion supports the near-unanimous view of the federal courts that the constitutional right to be armed is linked to an organized militia,” said Dennis A. Henigan, director of the legal action project of the Brady Center to Prevent Gun Violence. “The exceptions attract attention precisely because they are so rare and unexpected.”"
Exceptions? We're talking about 90% of scholarship in the last quarter century. We're talking about all the big names in con law -- Sanford Levinson, William van Alstyne, Akhil Amar, Larry Tribe.
Chuckle--the DC attorney in the Parker case says "We all remember very well when D.C. had the highest murder rate in the country, and we won’t go back there.” Yep, I remember it, too. I was working at Interior then. One of the more cynical attorneys had a betting pool on when DC would break 300 homicides (I forget who won). DC's handgun ban had been in effect for ten or twenty years then.
[Update: yup, the collective right theory in court opinions traces to circuit courts of appeals reacting to the Supeme Court's Miller decision in the 1940s. They appear startled to realize that, under Miller, possession of almost any military-type firearm would be protected. One circuit court sets out to misread Miller, the other argues that Miller just established a minimum threshhold test and other courts can go farther. Other circuits picked up on those two over the 1950s and 1960s.
The idea had been around longer. Saul Cornell found a constitutional textbook aimed at the masses, from the 1830s or so, that mentioned the idea in terms of "maybe we can read it this way." And an 1842, I believe, state court case mentioned it in one of the three judges' opinions. But until 1941 or thereabouts, that was it. For all practical purposes, the "collective rights" concept arises from the federal circuit courts over the last sixty years, as a way of getting around Miller].
4 Comments | Leave a comment
I always bridle when I read or hear their criticism that Parker overrides 70 years of jurisprudence.
They conveniently omit that that jurisprudence (or mistaken interpretation of it) overrides 150 years of jurisprudence and several hundred years of western history on this continent.
One of the best Scholarly articles on the Second Amendment was written in 1960. : Hays, Stuart, R., William and Mary Law Review, The Right to Bear Arms, A Study in Judicial Misinterpretation,Vol. 2 :381, 388. (1960).
I doubt this guy was a liberal since he states: "It then stands to reason that the right to bear arms rests on three solid English rights: The right to revolution; the right of group self-preservation; and the right of self-defense....These basic rights are a portion of the English common law and had evolved before prior to the landing at Jamestown in 1607."
George Mason stated just after the Victory at Yorktown when Virginia was violating its own Declaration of Rights, "That the good People of Virginia took up Arms, in the present Contest with Great Britain, in Defence of their Liberty and Property, invaded by an arbitrary & tyrannical Government; that as it is not merely for Names, but our essential Rights we are contending, the same Principles which first induced us to draw the Sword will again dictate Resistance to Injustice & Oppression, in whatever Shape, or under whatever Pretence, it may be offered." The sentiments of George Mason come from a long English tradition and from the law of nature.
Liberal opinions are changing, the world is still spinning and orbiting the sun. Not clear where Liberals got their "scholarly opinions" in the first place.
After screaming so many times that the streets will run with blood, everywhere will be dodge city, and the last straw the English ad campaign to warn tourists of Florida's gasp gun culture, as state after state issued CCW and all that happened is the crime rate continued to go down -- My take is the Liberals have used up all their cry wolf chits, so now they have no other choice. No one is listening anymore.
David would know better than me, but I believe the collective rights view more or less started with lower courts misinterpreting Miller. My recollection was that the reason the NFA did not outright ban machine guns (and instead imposed a $200 transfer tax) was that the Attorney General at the time opined that an outright ban would violate the 2nd Amendment.
This was, of course, back during the days of poll taxes (a tax that had to be paid in order to vote) and other government attempts to consolidate power in the hands of the property owning class that between then and now have all been declared unconstitutional. All of them, of course, except the NFA's transfer tax. And now, to add insult to injury, we have to live with 922(o).