Posted on 06/20/2002 1:58:16 PM PDT by Stat-boy
n the early 1980s, Northwestern University law professor Daniel D. Polsby referred to the "individual right" interpretation of the Second Amendment as "a lot of horse dung."
By 1994, he changed his mind, saying: "Almost all of 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 National Guard. It goes without saying that like all constitutional rights, the right to keep and beararms is subject to reasonable regulation consistent with its purpose."</> Notice he said "qualified" historians and constitutional-law scholars?
Why the change of heart? The answer is simple: He studied the subject for himself. You'd be surprised, no, shocked, at how many law professors maintain the "collective right" interpretation of the Second Amendment - not because of any empirical research on their part - but because of a total lack thereof. Their opinions are based merely on what they've read or heard some other professor assert. A classic example of "the blind leading the blind."
In their excellent essay "Under Fire: The New Consensus On The Second Amendment", Randy Barnett and Don Kates reveal that many law professors don't do their homework when it comes to the Second Amendment. And when they do get around to a serious study, they're forced to change their previously held notions.
One of the greatest examples of judicial ignorance - and laziness - was created by an interview of Supreme Court Chief Justice Warren Burger that appeared in Parade magazine on January 14, 1990 wherein he stated that the Second Amendment was "...one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I've ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies- the militia - would be maintained for the defense of the state. The very language of the Second Amendmentrefutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires." Strange statement for a man who was known to answer his door while holding a pistol!!!
As a result of this one erroneous statement, twenty-six law professors sent an open letter the American Lawyer declaring that the Second Amendment did not guarantee an individual right to own firearms - despite the fact that not one of the twenty-six signatories had ever written a single essay on the subject! Regrettably, it's declarations such as these that are used by politicians and gun-grabbers to push for more gun-restrictive legislation---all the while quoting the "experts".
Brannon P.Denning came to the same conclusion as did Barnett & Kates in his essay, 'Talking-Head Constitutionalists': "All the quoted statements (by law professors) were apparently made either in public remarks or in newspaper opinion pieces. Further, it should be emphasized that none of these persons quoted have published a scholarly article on the Second Amendment, or have given the "unanimous" federal court opinions a close reading. It is likely tht these men were simply repeating the conventional wisdom regarding the Second Amendment as they learned it."
Joyce LeeMalcom, a history professor at Bentley College, noted in her book, To Keep and Bear Arms: The Origins of an Anglo-American Right, that "...members of the legal academy, until relatively recently, have been reluctant to join the Second Amendment debate, and the nature of the right to arms remains a historical controversy more faithfully attended to by the partisans on the different side of gun control debate than by professional historians."
The professor is right. The average militia member and patriot in America today probably knows more about the historical and legal background of the Second Amendment than the average law or history professor.
"Research conducted through the 1980s has lead 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 of the Second Amendment," wrote Barnett & Kates.
"Reluctantly" is not overstatement. Many professors do not own guns and some, quite frankly, don't like guns. "My view of guns is simple. I hate guns and I cannot imagine why anyone would want to own one. If I had my way, guns for sport would be registered, and all other guns would be banned," said Deborah Prothrow-Stith, Dean of Harvard School of Public Health. Another know-nothing airhead who doesn't know that privately owned firearms have been a boon to public health by fending off criminals attacks and thereby preventing injury. And, no doubt, never studied the subject.
However, those who do conduct an empirical study on this topic have been intellectually honest enough to state the facts rather than let their bias interfere with ones interpretation - an honest trate that politicians will never master. What a difference it makes when you're not seeking votes and campaign donations. And remember, an accurate portrayal of the Second Amendment is "politically incorrect."
Another convert to the "Gun Lobby Gospel" (a term used by gun-grabbers to describe an individual rights interpretation of the Second Amendment) is Professor Akhil Reed Amar. Before preparing a bicentennial article on the Bill of Rights, Professor Amar had a collective right mindset. But after much study, he concluded that "The ultimate right to keep and bear arms belongs to the 'the people,' not the 'states.' As the language of the Tenth Amendment shows, these two of course are not identical and when the Constitution means 'states,' it says so. Thus... 'the people' at the core of the Second Amendment are the same 'the people' at the heart of the Preamble and the First Amendment, namely Citizens...Nowadays, it is quite common to speak loosely of the National Guard as'the state militia,' but...in 1789, when used without any qualifying adjective,'the militia' referred to all Citizens capable of bearing arms. The militia is identical to 'the people' in the core sense described above." Professor Amar's conversion to a individual right interpretation of the Second Amendment broke many Liberal hearts. Near treason to some.
Professor Joyce Lee Malcolm wrote: "The Second Amendment was meant to accomplish two distinct goals...First, it was meant to guarantee the individual's right to have arms for self-defense and self-preservation. These privately owned arms were meant to serve a larger purpose as well...and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public...the militia (being)...the body of the people. The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation."
Former ACLU board member, attorney Alan Dershowitz, a Liberal's liberal if there ever was one, warned fellow liberals that what they are doing to the Second Amendment may some day be used against other Amendments by other groups: "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard, don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like." Right he is.
Some seventy scholars belonging to Academics for the Second Amendment (AFSA or A2A) added their signatures to a letter declaring that the Second Amendment guarantees an individual right to bear arms. The letter appeared in the National Review, New Republic and the NationalLaw Journal in March, 1993. Here are the final paragraphs: "The view that the Second Amendment to the Constitution of the United States guarantees only the states' right to maintain formal militias attained a surprising respectablility. That may be more explicable as an expression of the hostility many academicians feel toward guns and their owners than as an unbiased constitutional interpretation. The Second Amendment does not guarantee merely a "right of the states,' but rather a 'right of the people,' a term which, as used throughout the Bill of Rights (e.g. the First and Forth Amendments) is widely understood to encompass a personal right of the citizens. Moveover, the Amendment refers to the 'militia,' a term which in the 18th century meant not a formal military unit like the National Guard, but a system under which every householdand every man of military age was required to own a gun in order to defend thecommunity against tyranny, foreign invasion, and crime. The leading interpretations before Congress, when it enacted the Bill of Rights affirmed that the Second Amendment means that 'the people are confirmed in their right to keep and bear their privatearms' - 'their own arms.'"
"Furthermore, the 'individual right' component of the Second Amendment became even more prominent in consitutional theory due to the transformation wrought by and through the debates in the (post Civil War) Congress concerning the privileges and immunities of national citizenship. Many congressmen pointed out that blacks in the South needed to be constitutionally protected in the citizen's individual, personal right to bear arms in self-defense.”
"Of course, the right to bear arms in no more 'absolute' than is the right to speak, to publish, or to assemble. Hence, there is room for disagreement over the scope of Second Amendment rights, just as there currently exists legitimate disagreement over the scope of First Amendment rights of assembly and free speech. Nothing in this statement, therefore, is intended to deny either the constitutionality of, or the need for, sensible gunlaws."
The struggle for the Second Amendment is difficult for many reasons, three of them are: Dishonest politicians, dishonest judges and lazy law professors who don't do their homework all the while passing themselves off a experts on a subject they know absolutey nothing about.
Sounds like the sort of club whose meetings could be held in a phone booth, with room to spare! ;O)
I was a law student of Dan Polsby's back in the late 80's, when I was still a liberal (or thought I was). He was a brilliant teacher, and a nice guy. He also gave this Freeper his only A+ in law school!
Similarly, some 2nd amendment stalwarts, like the NRA with it's operation Exile, would trash other parts of the Bill of Rights. In that particular case it's the 9th and 10th amendments that are being trashed, probably along with some aspects of the 4th ,5th, 6th, and 8th.
But you'd be wrong, denture breath. The majority of legal acadmemics now endorse the standard model of the second amendent, the individual right understanding. Which is why it's called the "standared model".
By 1994, he changed his mind, saying: "Almost all of 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 National Guard. It goes without saying that like all constitutional rights, the right to keep and beararms is subject to reasonable regulation consistent with its purpose."</> Notice he said "qualified" historians and constitutional-law scholars?
Far be it from me to argue with a professor, but the Constitution establishes only ONE right - the right to a trial by jury of one's peers. In all other instances, the Constitution describes specifically all the things the new government was empowered to do on behalf of the People. When the framers finished that task, they set out to describe in detail where the new government was forbidden to legislate. The Ten Caveats (Bill of Rights) describe not what the people may do, but what the government may not do.
The painful part is that the ultra, knee-jerk, radical, lunatic far-left ignores the most important two elements of the Bill of Rights - #'s 9 & 10. Ah, well, a conversion on #2 might bode favorable for 9/10 in the future.
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