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The New Consensus on the Second Amendment Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1996 Under Fire: The New Consensus on the Second Amendment Randy E. Barnett This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1538 Randy Barnett, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139 (1996). This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Civil Law Commons, and the Constitutional Law Commons EMORY LAW JOURNAL Volume 45 FALL 1996 Number 4 ARTICLES UNDER FIRE: THE NEW CONSENSUS ON THE SECOND AMENDMENT Randy E. Barnett* Don B. Kates** TABLE OF CONTENTS INTRODUCTION: REACTING TO THE NEW SCHOLARLY CONSENSUS 1141 An HOMINEM ATrACKS ON LEGAL SCHOLARS ............. 1143 A. Deceifully Ignoring Case Law ..................... 1151 1. Supreme Court Discussionsof the Amendment ............................... 1152 2. Lower Federal Court Decisions ................. 1160 3. Second Amendment Scholars Have Not Ignored Judicial Opinions ..................... 1165 4. A Bizarre Theory of Constitutional Meaning ......... 1167 B. Other Supposed Scholarly Deceptions ................. 1169 1. William Van Alstyne ......................... 1169 2. Robert Cottrol and Raymond Diamond ............ 1173 3. Sanford Levinson ........................... 1175 C. Impugning the Integrity of Second Amendment Scholars .... 1179 * Austin B. Fletcher Professor of Law, Boston University. ** Attorney at Law, San Francisco, CA, LL.B., Yale 1966. We wish to thank Charlotte Edelman and Cecelia Gasner for their research assistance and C.B. Kates for his suggestions. Permission to photocopy for classroom use is hereby granted. 1140 EMORY LAW JOURNAL [Vol. 45 1. Are You Now, or Have You Ever Been, a Member of Academicsfor the Second Amendment? ............ 1179 2. Falsifying the Scholars' Actual Views ............. 1188 3. The Relevance of Guilt by Association ............. 1191 II. FACTUAL ERRORs AND SLOPPINESS ..................... 1192 A. Fudging the Count in Order to Minimize the Scholarly Consensus ................................... 1192 B. Defaming the "Necromerchants"..................... 1196 1. Marketing Candy-ColoredGuns for Kids ........... 1197 2. Marketing FingerproofGuns to Criminals .......... 1197 3. The TRA Helped Assassinate PresidentKennedy ...... 1198 4. The "Assault Weapon" Hoax ................... 1199 5. Race, Racism, Falsehood,and the NRA ............ 1202 III. THE MILITIA-CENmRIC THEORY OF THE SECOND AMENDMENT ... 1204 A. A Makeweight Conception of the Second Amendment ...... 1204 B. Problems with the Militia-Centric Theory .............. 1207 1. The ConstitutionalText ....................... 1207 2. The Founders' Understandingof the Amendment ...... 1210 3. "FirearmsFundamentalists": The Founders' Beliefs About Guns .......................... 1214 4. Subsequent Commentary on the Constitution ......... 1219 5. CongressionalConstruction of the Second Amendment .. 1222 C. Does the Initial Purpose of a Right Limit Its Scope? ...... 1224 D. Evading the Text by Claiming the Amendment Is an Anachronism ............................... 1225 1. Suppose the Amendment Is an Anachronism ......... 1225 2. The Amendment Is Not an Anachronism ............ 1228 E. The "Insurrectionary"Implications of the Second Amendment 1232 IV. GuNs AND PUBLIC SAFETY ........................... 1234 A. Vilifying One's Opponents ........................ 1234 B. The Criminology of Guns and Violence ............... 1236 1. Foreign Comparisons ........................ 1236 2. Defensive Gun Use in the United States ............ 1242 1996] UNDER FIRE 1141 3. The Ordinary Gun Owner and the AberrantMurderer .. 1244 4. The "More Guns = More Murders" Shibboleth ...... 1247 5. The Tragedy of Homicide Among Young African-American Urban Males .............................. 1251 C. The ProhibitionistGoal of the Gun Control Movement ..... 1254 CONCLUSION: SHOOTING THE MESSENGERS ................... 1259 INTRODUCTION: REACTING TO THE NEW SCHOLARLY CONSENSUS Until the early 1980s the Second Amendment had received little attention or interest from legal scholars.' In 1981 Northwestern University law pro- fessor Daniel D. Polsby ridiculed the individual rights view of the Amend- ment as "a lot of horsedung."2 But as of 1994, having acquainted himself with the rather substantial literature of the intervening years, Polsby com- mented: [A]lmost all the qualified historians and constitutional-law scholars who have studied the subject [concur]. The overwhelming weight of authority affirms that the Second Amendment establishes an individual right to bear arms, which is not dependent upon joining something like the Na- tional Guard. It goes without saying that like all constitutional rights, the right to keep and bear arms is subject to reasonable regulation consistent with its purposes.3 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 4 of the Second Amendment. The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CoNsT. amend. II. 2 See Mike Royko, Guns and the Constitution, CHI. SUN-TIMES, March 20, 1981 (quoting Polsby as "describing this gun lover's belief as 'a lot of horsedung."'). ATLANTC MONTHLY, June 1994, at 13. See also GEORGE P. FLETCHER, A CRIME OF SELF DE- FENSE: BERNHARD GoETz AND THE LAw ON TRIAL 156 (1988) ("[E]ven though the prevailing interpretation is that the [Second A]mendment merely guarantees a right to the states to maintain a militia, convincing evidence indicates that the framers had an individual right in mind."). ' Whatever value one accords textual or historical evidence for constitutional interpretation, as will be discussed below, those who advocate a militia-centric interpretation of the Second Amendment have relied mainly, if not exclusively, upon textual or historical arguments. 1142 EMORY LAW JOURNAL [Vol. 45 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 mili- tia, 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 ap- peared in the American Lawyer and other publications.' 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-appropri- ately named) Gun Crazy,7 the first article to appear in an important law re- view in almost thirty years disputing this now-predominant individual right view of the Second Amendment. As Gun Crazy presents it, the near-unani- mous 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 com- munities are falling victim to a gun-lobby-organized conspiracy "to flood the law reviews with friendly scholarship from sympathetic law professors."' Our aim in this Article is two-fold: First, we intend to put the academic discussion of the Second Amendment back on its constructive path by rebut- ting 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 AM. LAW., June 1994, at 96 (advertisement). Warren Burger, The Right to Bear Arms, PARADE, Jan. 14, 1990, at 4-6. Andrew D. Herz Gun Crazy: ConstitutionalFalse Consciousness and Dereliction of Dialogic Re- sponsibility, 75 B.U. L. REV. 57 (1995) [hereinafter Gun Crazy]. ' Id. at 138. 19961 UNDER FIRE 1143 conspiracy that Gun Crazy levels against scholars whose views it finds uncon- genial. 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 aca- demics, even those who write about other areas of constitutional law, are largely unaware. In Part III, we examine the merits of the interpretation pro- ferred by opponents of an individual right to keep and bear arms: the militia- centric conception of the Second Amendment. We analyze how textual, his- torical, and structural considerations each argue against such an interpretation and in favor of an individual
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