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« Online chat on Heller today | Main | Suit to overturn public housing gun bans in San Francisco »

An odd ad hominem attack on Heller

Posted by David Hardy · 27 June 2008 06:37 PM

Over at History News Network. If this is the best the critics can do... it's pathetic. It reduces to undocumented assurances that Heller got it al wrong, and that the individual rights postiion can't be right -- why the first almost-recent (1960) article on it was by a non-historian in a law review.

"or a new theory in any field to have integrity, especially in a subject as well-trodden as the Constitution, it must be subjected to the intense scrutiny, before publication, found in any discipline. But this article, like nearly all others in the field of law, was never submitted to peer review by subject matter experts, the gold standard for evaluating the worthiness of new research and ideas in every other field of study."

I'm glad this "peer review" did such a good job with Bellesiles. At least law reviews look up your footnotes to ensure the author isn't blowing suspensions of carbon particulate up their nether regions. I gather that Bellesiles' peers thought that step not necessary to their review.

· Parker v. DC

13 Comments | Leave a comment

CDR D | June 27, 2008 7:27 PM | Reply

We shouldn't be surprised by foam-flecked commentaries such as this one.

Expect many more.

Letalis Maximus, Esq. | June 27, 2008 7:37 PM | Reply

Well, it isn't any worse than the tripe about Heller being published by so-called legal reporter Dahlia "Doesn't Know a Justice from a judge" Lithwick, and others of a similar stripe, over at Slate.

Jim | June 27, 2008 7:57 PM | Reply

"Gun rights enthusiasts, eager to establish an "originalist" constitutional pedigree for their developing political movement"

I always thought our political movement was pretty damn well established long before this.

tom gunn | June 27, 2008 10:33 PM | Reply

Crimeny they are still pushing the failed collective rights argument when most of the anti rights doofusses have moved onto the sophisticated collective rights argument.

They point to the dearth of scotus ruling and conjure that into some militia proof ignoring the fact and the reason there is no scotus precedent is there were no fed laws which infringed the "right of the people to keep and bear arms"!

Not until the NFA which was a tax law.

The dissent in Heller can't even get the facts of Miller correct, even when it is shown to them by Scalia word for word and frequently in crayon.

Page two of the dissent has already been examined. Will the dissent correct that egregious error about Miller?


tg


Anon | June 28, 2008 12:02 PM | Reply

Is he trying to imply that pro-gunners are Confederate sympathizers? I most assuredly am not; the NRA was founded in New York by Union officers after all. Plus, Congress passed laws immediately after the war to ensure that Freedmen had access to firearms.

(I have seen anti-gunners argue that it was a "right to rebel" by having state militias to fight the federal government.)

straightarrow | June 28, 2008 2:08 PM | Reply

(I have seen anti-gunners argue that it was a "right to rebel" by having state militias to fight the federal government.)

Not surprising since that was the framers' intent.

Ieyasu | June 28, 2008 7:47 PM | Reply

Spitzer is simply dishonest. He writes:
"This article was not the first academic analysis of the Second Amendment. It had been subject to serious scrutiny in over a dozen articles published in law reviews from the late nineteenth century through the 1950s; all of them endorsed the amendment's militia basis.'

He fails to mention that Lucilius Emery's article, from 1915, with respect to "keep," states, "From the foregoing premises I think there are deducible several propositions as to the power of the legislature to restrict and even forbid carrying weapons by individuals, however powerless it may be as to the simple possessing or keeping weapons (emphasis added)"

Spizter always fails to mention this when citing Emery or obliquely referring to his work as he does in the article under discussion.

Obviously Emery does not read "keep and bear" as a 'unitary' right as Spitzer's beloved Gary Wills does.


Ieyasu | June 28, 2008 7:49 PM | Reply

Whoops. Forgot to add a link to Emery's article: http://guncite.com/journals/har1915.html

Ieyasu | June 28, 2008 9:29 PM | Reply

Also let's not forget what Spitzer wrote about Bellesiles' "Arming America" (on the back cover):

"Meticulously, even extravagantly, researched, this book is a tour de force. Bellesiles has done what no one before has--examined the fact behind American gun mythology. This book will transform the modern gun debate by moving it from hysteria to sensible analysis. In every respect, a superb piece of historical work." [emphasis added]

AMB | June 29, 2008 3:57 PM | Reply

What the h*ll?! That's at a web site that appears to be backed by George Mason University: "George Mason University's History News Network." Spitzer's not with GMU, but that web site is with GMU.

Suppose someone should give a heads up to the person who runs that site about all of the George Mason connections to the Heller winning side?

George Mason's law school is my school, and here's the list of connections I know about:

GMUSL JD Bob Levy began and funded the litigation.
GMUSL's Nelson Lund wrote one of the most widely praised amicus briefs as the case was before the Supreme Court.
GMUSL's Joyce Malcom worked on an excellent brief on the right as inherited from England.
GMUSL's Dean and two professors (Polsby, Cohen, & Kraus) were on an amicus brief for the underlying case.
GMUSL JD Will Consovoy wrote an amicus brief.
GMUSL JD Richard Gardner wrote an amicus brief.
GMUSL JD Richard Hill wrote an amicus brief.
GMUSL JD yours truly co-authored one of the briefs.
GMUSL hosted two moot courts for Heller's lawyer Alan Gura.

And now some George Mason web site runs a piece that tries to suggest that the Supreme Court got it wrong?

It's no wonder that I make my donations directly to the law school, and NOT to the main university.

David E. Young | June 29, 2008 11:04 PM | Reply

History News Network publishes articles on both sides of issues, but generally limits publication to academics and those with doctorates on really controvesial subjects like the Second Amendment intent debate.

Not being an academic, the ONLY reason HNN would publish my criticism of the Heller amicus brief from the professional academic historians was because several academics vouched for my expertise on the subject, and because there were clear errors of fact in the historians' brief.

My article criticizing the historians' Heller brief is at:
http://hnn.us/articles/47238.html

AMB | June 30, 2008 9:16 AM | Reply

David, thank you for information, and thank you for the link to your article.

Ralph Rubinek | June 30, 2008 8:02 PM | Reply


Since the age of 13 I have been a proponent of gun rights. As the son of Holocaust survivors my parents taught me about the importance of limited government and how in less than 60 years ago 14 million civilians in Europe were lead like sheep to slaughter murdered by government in less than 10 years.

Historically the first step in government-sanctioned genocide is banning firearms, the premise... Public Safety. I do not know of an armed society where genocide occurred.

On Thursday, the Court rediscovered the Second Amendment. More than five years after six Washington, D.C. residents challenged the city’s 32-year-old ban on all functional firearms in the home, the Court held in District of Columbia v. Heller that the law is unconstitutional.

Yes we must control criminals, yet we must not create a class of criminals just for owning arms for self-defense. Criminals do not obey the law and as demonstrated in societies where criminal government reins millions die. It is morally perverse to equate the law-abiding with criminals. Gun control laws, which deny the common citizen the right to bear arms, only creates a victim society.

Heller is merely the opening salvo in a series of litigations that will ultimately resolve what weapons and persons can be regulated and what restrictions are permissible. But because of Thursday’s decision, the prospects for reviving the original meaning of the Second Amendment are now substantially brighter.

The Supreme Court understood the founder’s intent and included provisions that will uphold common sense laws, which deny firearms to those persons who have demonstrated ill regard to innocent human life and property. Those who claim this outrageous and wanting a collective interpretation of the Second Amendment have shown their utter contempt toward individual rights of the people.

Clearly, an armed population deters genocide.

Ralph J. Rubinek
Staten Island, New York

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