.............................................................. >From the New Paradigms Project [Not Necessarily Endorsed]: From: Lloyd Miller <[EMAIL PROTECTED]> Subject: Liberal Legal Scholars Are Supporting The Right to Bear Arms Date: Thursday, May 18, 2000 7:04 AM http://www.linguafranca.com/0002/showdown.html SHOWDOWN Liberal Legal Scholars Are Supporting The Right to Bear Arms. But Will Historians Shoot Them Down? BY CHRIS MOONEY As a self-described liberal Democrat and supporter of many gun-control measures, the University of Texas law professor Sanford Levinson has mixed feelings about having his academic work cited in Shotgun News and posted on Internet sites that link to the Montana militia. "I am in some very unattractive neighborhoods," he says of his Web presence. Levinson owes his popularity with the heavily armed to his 1989 Yale Law Journal article "The Embarrassing Second Amendment," which tentatively argued that the amendment guarantees a right to bear arms not just for state-militia members but also for individual citizens. Now endlessly cited by scholars and distributed by the National Rifle Association, Levinson's article makes him a slightly reluctant founder of what has come to be called the "Standard Model" of Second Amendment scholarship. Much of Levinson's argument in "The Embarrassing Second Amendment" was aimed at his own ideological allies. Citing a vast gap in the scholarly literature--only the obsolete Third Amendment, banning the peacetime quartering of troops in private homes, had drawn fewer studies at the time of his writing--Levinson accused fellow liberal legal scholars of ignoring the Second Amendment for fear of what they might discover. As Levinson points out, legal scholars have paid attention to just about everything else: "Is 'lookism' covered by the Fourteenth Amendment? I don't think it's uninteresting, but there's a reason why elite academics are more inclined to write that kind of piece than a piece on whether the NRA might have something to be said for its position." Would-be decipherers of the grammatically antique Second Amendment have long struggled to balance its two seesawing clauses. According to Levinson's "individual rights" interpretation, the amendment's preamble ("A well regulated Militia, being necessary to the security of a free State") does not constrain the interpretation of its subsequent language ("the right of the people to keep and bear Arms, shall not be infringed"). On Levinson's reading, the amendment primarily empowers individual American citizens to own guns for self-defense and, if necessary, to counter government tyranny by means of armed popular resistance. Other scholars and judges, however, have argued for a "collective rights" view that emphasizes the amendment's opening clause. According to this reasoning, gun ownership would be protected only in the context of a state militia, such as the National Guard. The most recent Supreme Court ruling on the Second Amendment, in the 1939 case U.S. v. Miller, has been read by a number of federal courts as enshrining the collective-rights position and, by implication, opening the way to robust gun-control legislation. In the decade following the publication of Levinson's "The Embarrassing Second Amendment," however, legal scholars have turned en masse to the contrary individual-rights view, filling law reviews with what may be more than a hundred articles defending this position. Citing this growing literature in his introduction to a 1995 Tennessee Law Review symposium on the Second Amendment, the University of Tennessee law professor Glenn Harlan Reynolds cribbed from physics to pronounce the individual-rights reading the "Standard Model" for interpreting the amendment. The name stuck. Today, the Standard Model appears to be on the verge of graduation from the law review to the courthouse. Citing Standard Model scholarship, a Texas judge recently made a decision that may force the first major Second Amendment precedent in the sixty years since Miller. This past April, just before the Columbine shootings brought gun control to the top of the nation's agenda, federal district court judge Sam R. Cummings delivered an unprecedented ruling in defense of the individual's right to bear arms. Now on appeal, U.S. v. Emerson will be heard this spring in New Orleans by the U.S. Court of Appeals for the Fifth Circuit. If Cummings's Standard Model ruling is upheld there, the case stands an excellent chance of reaching the Supreme Court, where another individual-rights ruling could effectively shift the burden of proof in future gun-control debates. Countless existing laws could also be thrown into question. -------------------------------------------------------------------------------- Previously in LF Tribal Lore: Did the U.S. Constitution originate with the Iroquois? All the President's Men: A historians' petition takes on the impeachment process. -------------------------------------------------------------------------------- >From bn.com + Joyce Lee Malcolm, To Keep And Bear Arms; The Origins of an Anglo-American Right + Lawrence Tribe, American Constitutional Law + Akhil Amar, The Bill of Rights: Creation and Reconstruction + Gary Wills, A Necessary Evil: A History of American Distrust of Government + Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in +America, 1788-1828 -------------------------------------------------------------------------------- Just as it seems on the verge of victory, however, the Standard Model has encountered what may be its first serious academic challenge. In a recent forum in the journal Constitutional Commentary, a group of historians argue that the legal scholars have gotten their history all wrong. Led by Ohio State's Saul Cornell, the historians attack both the methodology and the conclusions of Standard Model legal scholars. Drawing on social history, they allege that gun ownership was neither as widespread nor as admired in eighteenth-century America as is often thought. Even more boldly, some critics claim that the Second Amendment was adopted only as a favor to slave owners and thus deserves a proper burial. Most pointedly of all, it has been charged that the Standard Model is part of a strategic move by the gun lobby to develop a body of secondary literature supporting its position. What is behind the Standard Model--and just how "standard" is it? -------------------------------------------------------------------------------- Standard Modelers contend that one key to understanding the Second Amendment lies in the ratification debates of the 1780s, and particularly in the writings of opponents to the Constitution. Anti-Federalists such as Patrick Henry, George Mason, and Richard Henry Lee, were strongly influenced by classical republican political philosophy and its suspicion of distant, centralized authority. They greatly feared that a strong federal government would use its potentially tyrannical powers to tread on local autonomy and individual freedoms. In particular, these populists objected to the Constitution's creation of a standing army under the jurisdiction of the federal government. Such an army, they worried, could be used to enforce arbitrary decrees. Madison's Bill of Rights, ratified in 1791, is generally seen as a concession to the Anti-Federalists. The Second Amendment, Standard Modelers believe, addressed the Anti-Federalist fear of a standing army by ensuring that individual Americans and their local citizen militias would remain armed and intact as a safeguard against potential tyranny. "The world they were living in was a world that had never in the history of the planet had a continental democracy," explains the Yale law professor Akhil Reed Amar, who accepts the individual-rights position. "They wondered whether you could have such a thing. So you can understand from their lived historical perspective why they'd want something like the Second Amendment as a kind of safety net." Standard Modelers note that in Federalist no. 46, James Madison made just this point, describing the "advantage of being armed, which the Americans possess over the people of almost every other nation" and which would protect them should the new government grow oppressive. Proponents of the individual-rights view further observe that at the time the Bill of Rights was drafted, the militia was understood not as a select group like the National Guard but rather, in the words of the Virginia Anti-Federalist George Mason, as encompassing "the whole people." Or, as Anti-Federalist demagogue Patrick Henry put it during the Virginia ratification convention (where he attacked the new Constitution), "The great object is that every man be armed." Such language, Standard Modelers point out, is consistent with the rest of the Bill of Rights. "How can a right of the people be something other than a right of the people?" asks the legal scholar Robert Cottrol of George Washington University. Standard Modelers argue that the Second Amendment should be treated just like other amendments in the original Bill of Rights that mention "the people," all of which have been interpreted as protecting individual rights. If the Second Amendment had been meant to secure a state's right to arm its militia, these scholars contend, then why does it not read more like the Tenth Amendment, which explicitly mentions rights "reserved to the States"? In a foundational Standard Model text, To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard, 1996), Joyce Lee Malcolm, a historian at Bentley College in Massachusetts, traces the origins of the Second Amendment's guarantee back to Britain, where states' rights certainly did not apply. Well before the American Revolution, Malcolm avers, colonists had enjoyed an individual right to bear arms under the 1689 English Bill of Rights. Citing this legacy, Standard Modelers argue that early Americans commonly assumed that they possessed an individual right to bear arms, and this assumption naturally found its way into the new country's Bill of Rights. ACCORDING TO MICHAEL BELLESILES, ROMANTIC IMAGES OF THE MINUTEMEN HAVE BLINDED SCHOLARS TO THE FACT THAT ONLY A SMALL PERCENTAGE OF THE COLONIAL ELITE OWNED GUNS. The individual-rights view of the Second Amendment has proliferated among legal scholars in the last ten years. Significantly, its appeal is not restricted to political conservatives. Rather, the Standard Model has won the respect of many first-tier scholars of constitutional law, some of them well-known political liberals who have championed similarly robust and individualist understandings of other rights, from the right to free speech to the right to privacy. Among the converts are William Van Alstyne, a celebrated Duke legal scholar and former American Civil Liberties Union board of directors member; Yale's Amar, who argues in The Bill of Rights: Creation and Reconstruction (Yale, 1998) that the Second Amendment was transformed via the Reconstruction-era Fourteenth Amendment (which guaranteed due process and equal protection before the law) from a military safeguard into a protection for private citizens; and the liberal Harvard constitutional-law guru Laurence Tribe. In previous editions of his treatise American Constitutional Law, Tribe had relegated the Second Amendment to a lengthy footnote. But in the third edition, released last August by Foundation Press, he upgraded his discussion to nine pages and acknowledged the existence of "a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes." Says Tribe of his recent work:"Do you persist in digging and taking the risk that you won't like what you find? I guess that's what I did." For the San Francisco gun-rights litigator Don Kates, the conversion of such esteemed liberal law professors must seem a stunning victory. In his seminal 1983 Michigan Law Review article, "Handgun Prohibition and the Original Meaning of the Second Amendment," Kates had observed that "the individual rights view is endorsed by only a minority of scholars." Today, he boasts, "I can name person after person after person, including myself, who started out on the other side, and you read the evidence, and there's just no question where it takes you." -------------------------------------------------------------------------------- According to a group of American historians, however, Standard Modelers have declared victory prematurely and have misappropriated history to do so. Perhaps the most outspoken Standard Model critic is Northwestern University's Pulitzer Prize--winning historian Garry Wills, whose recent book, A Necessary Evil: A History of American Distrust of Government (Simon & Schuster, 1999), delivers a scathing critique of the right-to-rebel principles implied by an individual-rights reading of the Second Amendment. Wills's objection is simple. Citing Article Three of the Constitution, he says, "you can't read the amendments apart from the body of the Constitution, and the body of the Constitution defines taking up arms against the United States as treason." Wills previously lampooned the Standard Model in a September 1995 New York Review of Books article, in which he called Sanford Levinson's work "frivolous" and wrote, "It sometimes seems as if our law journals were being composed by Lewis Carroll using various other pseudonyms." Standard Modelers, in response, have charged that Wills is dogmatically antigun. Perhaps inspired by Wills's example, a group of historians contributed to the anti-Standard Model forum in last summer's issue of the journal Constitutional Commentary. The forum centers on the work of the Ohio State historian Saul Cornell, whose recent book, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788--1828 (North Carolina, 1999), surveys the ideological breadth and lasting influence of the opponents of the Constitution. According to Cornell, individual-rights theorists have misread the Anti-Federalists. The Constitutional Commentary forum, he says, is the first "frontal assault on the anachronisms and the mistakes that are at the heart of the Standard Model." In his lengthy contribution to the Constitutional Commentary forum, Cornell claims Standard Modelers have assumed, rather than proved, a consensus on the right to bear arms in postrevolutionary America. To examine this presumption, Cornell investigates a favorite example of the Standard Modelers: the state of Pennsylvania, whose 1776 constitution ensured that "the people have a right to bear arms for the defense of themselves and the state." Roughly a decade and a half later, Pennsylvania's Anti-Federalist minority offered up a proposed amendment to the national Constitution with very similar wording. Standard Model scholars take these passages and others like them to show that an individual right to bear arms was a common assumption of late-eighteenth-century Americans. But Cornell observes that shortly after Pennsylvania's constitution was ratified, the new state government passed a stringent loyalty oath called the Test Acts. Since those who did not take the oath were denied certain rights, including the right to bear arms, the Test Acts had the ultimate effect of disarming as much as 40 percent of the citizenry. Similarly, the proposed amendment to the U.S. Constitution contained a clause reading, "no law shall be passed for disarming the people...unless for crimes committed, or real danger of public injury from individuals"--exceptions that Cornell claims were understood very broadly. Postrevolutionary Pennsylvanians, he concludes, did not understand civil rights the way we do today. Rather, they believed that many personal freedoms could be violated in the interest of a majoritarian, communal perception of the common good, in keeping with republican political theory. Thus, a modern civil-libertarian reading of these right-to-bear-arms pr! ovisions would be anachronistic. Like Wills, Cornell also disputes the notion that the Anti-Federalists envisioned armed citizens resisting federal tyranny with local insurrections. Standard Modelers, argues Cornell, fail to consider Pennsylvania's Whiskey Rebellion and Carlisle Riot, both examples of populist, backcountry insurrections staged by those disillusioned with the new federal government. While these rebellions were sparked by radical Anti-Federalists, Cornell notes that more mainstream Pennsylvania Anti-Federalists such as Elbridge Gerry were horrified by the rebels' notion that they had a right to stage insurrections as militias outside of state control: That way lay mobocracy. Cornell concludes that, given such diversity of opinion even within Anti-Federalist circles, a consensus on the meaning of the right to bear arms should hardly be assumed in postrevolutionary America. Nor, says Michael Bellesiles, a historian at Emory University, should the American romance of the militia and minutemen blind scholars to the truth about early-American gun culture. It is a common assumption that both gun ownership and militia membership were near universal at the time of the nation's founding, as suggested by these words of the Declaration of Independence signatory and Anti-Federalist Richard Henry Lee: "To preserve liberty, it is essential that the whole body of the people always possess arms." This notion of universality is crucial to Standard Modelers, who object that the National Guard cannot be the militia meant by the Second Amendment because its membership is selective, like that of the hated standing army. But Bellesiles, who contributed to the Constitutional Commentary forum and has extensively researched antebellum gun ownership and regulation, argues that only a small percentage of the colonial elite possessed firearms in the first place. In fact, Bellesiles says he has surveyed more than eleven thousand highly detailed probate records (inheritance lists for white males) from the years 1765 to 1850 from New England and Pennsylvania. His results, which will be published in this spring's The Origins of America's Gun Culture (Knopf), were astonishing: "Roughly 14% of all adult, white, Protestant males owned firearms. Fourteen percent. That translates to about 3% of the total population of the United States at the time of the Revolution. This percentage holds fairly constant up through 1840. So that in other words, all this talk about universal gun ownership is entirely a myth that I can find no evidence of." -------------------------------------------------------------------------------- At the heart of both Bellesiles's argument about the surprisingly low eighteenth-century gun-ownership rate and Cornell's argument about the Pennsylvania Test Acts is the notion that postrevolutionary Americans did not widely possess guns or assume a right to possess them. Early American gun ownership was not for everyone. Indeed, the first Supreme Court mention of the Second Amendment was in the notorious 1857 Dred Scott v. Sanford decision, in which Chief Justice Roger Taney objected that if free blacks were considered citizens, they would possess the right "to keep and carry arms wherever they went." Perhaps the least flattering understanding of the Second Amendment can be found in the work of T. Carl Bogus, a professor at Roger Williams University law school in Rhode Island whose thesis has been endorsed by Garry Wills and Saul Cornell. In a 1998 U.C. Davis Law Review article titled "The Hidden History of the Second Amendment," Bogus speculates that the amendment was largely intended to strengthen the notorious slave compromise, without which the Southern states might never have consented to ratify the Constitution. Why else, he asks, would the authors of the Bill of Rights have been so eager to protect gun ownership? During the Revolutionary War, he notes, the militias proved worthless: George Washington was disgusted with their amateurish performance, writing in 1776 that "seldom a day passes but some persons are shot by their friends." IF THE STANDARD MODEL IS VINDICATED IN THE EMERSON CASE, A SUPREME COURT REVIEW IS ALL BUT ASSURED. "LEGAL SCHOLARSHIP IS OFTEN IRRELEVANT," SAYS EUGENE VOLOKH. "BUT HERE IT WON'T BE." But in the Southern states, militias were quite effective as slave-control forces: Without them, the South would have been vulnerable to slave rebellions. Bogus proceeds to argue that the Second Amendment was a tacit assurance on the part of the Northern states and the Federalists that the new government would never attempt to disarm the South's militias. He concludes, "the Second Amendment takes on an entirely different complexion when instead of being symbolized by a musket in the hands of the minuteman, it is associated with a musket in the hands of the slave holder." And yet this very history, scholars with a more libertarian bent retort, is precisely why universal gun ownership is crucial to the safety of black citizens today. In a 1991 Georgetown Law Journal article titled "The Second Amend ment: Toward an Afro-Americanist Recon sideration," George Washington University's Robert Cottrol and Tulane University's Raymond Diamond present a novel defense of the Standard Model on these grounds. They point out that blacks in the post-Reconstruction South were terrorized and frequently executed by armed white vigilante groups, such as the Ku Klux Klan. Abetted by local and state governments that did nothing to stop private violence against blacks, these groups took it upon themselves to enforce Jim Crow. In a string of now-infamous decisions, the Supreme Court shied away from protecting black civil rights in the hostile Southern states. The result was that between 1882 and 1968, 4,743 people were lynched in the United States. Almost all of the i! ncidents occurred in the South, and three fourths of the victims were black. Cottrol and Diamond conclude by defending a right to bear arms for self-defense, arguing that "a society with a dismal record of protecting a people has a dubious claim on the right to disarm them." Cottrol and Diamond's thesis dovetails with the work of Yale's Akhil Amar, who adds that Standard Modelers have frequently traced the individual right to bear arms to the wrong year: to 1789 instead of 1868, with the passage of the Fourteenth Amendment during Reconstruction. In The Bill of Rights: Creation and Reconstruction, Amar claims the Fourteenth Amendment largely recast the original Bill of Rights as a defense of individual civil liberties against violation by the state governments that had fostered slavery and rebellion. Citing an array of contemporary sources, Amar argues that, "between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman. The [Revolution] motto, in effect, was that if arms were outlawed, only the central government would have arms. In Reconstruction, a new vision was aborning: when guns were outlawed, only the Klan would have guns." -------------------------------------------------------------------------------- The back-and-forth about the true intentions of the framers and the Anti-Federalists may seem like a typical quarrel over scholarly arcana. But in U.S. v. Emerson, the Texas case decided this summer, arguments from the distant past were littered throughout an unprecedented modern legal decision supporting the Standard Model. The case involved Timothy Joe Emerson, a doctor in the midst of an ugly divorce who had been charged with violating a federal statute banning firearm possession while under a restraining order. Emerson had allegedly threatened to kill his wife's lover--leading to the restraining order--then later brandished a gun during an argument with her. But citing liberally from Standard Model scholarship, Judge Cummings ruled that the statute in question was unconstitutional because it "allows a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically deprive a citizen of his Second Amendment rights." If Cummi! ngs's decision in the Emerson case is upheld in the Fifth Circuit and beyond, Second Amendment case law will acquire its first major new precedent since the Supreme Court's 1939 unanimous decision in U.S. v. Miller. Miller itself was a very different case, involving two men who had transported a sawed-off shotgun across state lines into Arkansas in violation of a 1934 federal firearms law. Emphasizing the opening clause of the Second Amendment, the Court ruled that since there was no "reasonable relationship" between the shotgun and militia service, the Second Amendment could not be invoked to protect the right to own one. The Miller opinion also noted that the amendment had been framed with the "obvious purpose to assure the continuation and render possible the effectiveness" of the militias. At the same time, however, the Miller opinion defined the militia not as the National Guard but more broadly as "all males physically capable of acting in concert for the common defense." Over the years, many lower courts have adopted Miller's "reasonable relationship" test, and some have interpreted the precedent as a direct endorsement of the collective- rights reading of the Second Amendment. But Standard Modelers argue that Miller was ambiguous, citing both the judges' open-ended understanding of the militia and the Court's emphasis on the nature of the weapon in question rather than on whether or not the individuals on trial were state-militia members. (They were, in fact, bootleggers.) In "The Embarrassing Second Amendment," Levinson advanced an absurdist reading of the case, writing that Miller implied a right "to keep and bear...armaments that are clearly relevant to modern warfare," such as bazookas and rocket launchers. EVEN IF THE SECOND AMENDMENT CONFERS AN INDIVIDUAL RIGHT TO BEAR ARMS, SOME BELIEVE THAT SIGNIFICANT GUN CONTROL MEASURES ARE POSSIBLE. Judge Cummings quoted this passage in his Emerson opinion, which reads much like a Standard Model legal article. The judge appealed to Malcolm's argument that the right to bear arms originated with the British Bill of Rights, and he invoked the Pennsylvania example that Cornell disputed in Constitutional Commentary. He quoted from James Madison's Federalist no. 46 and from George Mason, Richard Henry Lee, and Patrick Henry. In short, he directly translated Standard Model scholarship into law. "If it weren't for the Standard Model," says the UCLA law professor Eugene Volokh, who has written several articles in the individual-rights camp, "the Emerson decision almost certainly would not have happened. Few district judges will buck the tide of lower-court decisions unless they have powerful arguments at their disposal." Cummings is not the first judge to allude to Standard Model scholarship. In a 1997 concurring opinion in Printz v. U.S., a Supreme Court case brought by the NRA against the Brady Bill on Tenth Amendment grounds, Justice Clarence Thomas nodded to Standard Modelers in a footnote, writing, "marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a personal right." Similarly, Justice Antonin Scalia has stated that "dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that." If the individual-rights reading of the Second Amendment is vindicated in the Fifth Circuit ruling on Emerson, a Supreme Court review would be all but assured. "Legal scholarship is often irrelevant," comments UCLA's Volokh. "But here it won't be." Not surprisingly, numerous advocacy groups, including the NRA and the Center to Prevent Handgun Violence, have filed friend-of-the-court briefs to the U.S. Fifth Circuit Court in Emerson. So has the Brooklyn Law School professor David Yassky, who mobilized a group of fifty-two scholars, including Bellesiles, Bogus, and Cornell, to sign his anti-Standard Model brief. The brief cites the Constitutional Commentary forum, alerting judges in New Orleans that strong academic opponents of the Standard Model have begun to speak out. -------------------------------------------------------------------------------- Legal scholars who support the individual-rights view are not exactly quaking in their boots. Many of them do not even see the historians' salvo as relevant to the legal issues at hand. Says Amar, "This is not a debate between historians and lawyers but a debate among historians and a debate among lawyers. A historian might ask, 'Who were the Anti-Federalists and what did they stand for?' A lawyer might ask, 'What does the Second Amendment mean?' Those are related questions perhaps but nevertheless distinct." Amar continues: "'A well regulated Militia, being necessary to the security of a free State': That notion might be false as a matter of historical fact but nonetheless true as a matter of constitutional law." Similarly, Duke's William Van Alstyne comments that, even granting that Michael Bellesiles's figures on postrevolutionary gun ownership are accurate, "it doesn't seem to me to make a very great deal of difference against the background of Bunker Hill, and the minutemen, and the imagery that this is the nature of things." In other words, if the Second Amendment enshrined an ideal of a universal militia, then whether or not such a militia ever existed is legally irrelevant. ELSEWHERE ON THE WEB There are hundreds of gun-related sites on the Web, from mainstream groups like the National Rifle Association and Handgun Control, Inc., to more esoteric groups like Jews for the Preservation of Firearms Ownership. Try Yahoo, or the evocatively-named Gunhoo, for more links. The Firearms Civil Rights Legal Defense Fund site does not include a link to Wendy Kaminer's Atlantic article on a 1996 Academics for the Second Amendment seminar, but as she calls the civil-libertarian defense of the amendment a "communitarian nightmare," that's hardly surprising. Daniel Lazare's Harper's article advocating scrapping the Constitution to get rid of the troublesome amendment isn't online at all, but Alexander Cockburn's excoriation of it is available from Counterpunch. The anti-Standard Model historians counter that when legal scholars couch their arguments in historical terms, they should not dismiss as irrelevant the latest findings published in refereed history journals. Observing that law journals are generally run by squads of students rather than peer reviewed, Cornell claims the structure of legal scholarship has allowed the Standard Modelers to recycle their errors tenfold because they are insufficiently scrutinized before publication but canonized afterward. "The standards for history in law journals are just not the same as the standards for historical scholarship in professional history journals," he declares. Garry Wills concurs, though he says he only realized law journals were not peer reviewed after lambasting the Standard Model in the New York Review of Books. "I was taking these people more seriously than I perhaps should have, because I thought, 'Well, my God, here are refereed journals,'" he says. "And it turns out they're! not." Somewhat surprisingly, Sanford Levinson pleads guilty to these accusations with good humor. "It's absolutely right," he says. "Lawyers are notorious for raiding other disciplines and taking some prisoners, and then making use of them as they wish. I do it, every law professor does it." In fact, Levinson has high praise for the Constitutional Commentary forum and Saul Cornell's article in particular. "I sent him a piece of fan e-mail after reading it," he says. Levinson feels Cornell's work will likely advance the debate on the Second Amendment, which he considers not yet closed by any means. Probably the harshest words for the Constitutional Commentary forum, however, come from a Standard Modeler who is herself a historian: Joyce Lee Malcolm. "It is rather sad that a small group of historians, who are displeased that there is overwhelming evidence for an individual right, are unable or unwilling to engage with that evidence and prefer to ignore it and brand this scholarship as 'bad history,'" she comments. "It is a very unprofessional approach and more than anything else demonstrates how paltry their own case is." -------------------------------------------------------------------------------- If the Standard Model debate is not really a standoff between historians and legal scholars, could it be more properly understood as a political dispute? Tribe and Levinson, among others, appear to have put their own politics aside and embraced the Standard Model despite significant discomfort with the implications of their discoveries. But other scholars continue to trade accusations of partisanship. In "The Hidden History of the Second Amendment," Carl Bogus claims there has been a "concerted campaign" to generate Second Amendment scholarship defending the individual-rights position, which he calls "one of the most effective manipulations of scholarship for political purposes that I know of." The NRA's charitable arm, the Firearms Civil Rights Legal Defense Fund (FCRLDF), Bogus notes, has dispensed large grants for scholarly research on the Second Amendment. (According to annual reports, the fund approved $99,000 for "right to bear arms research and education" in 1993--an amount that increased to $194,345 in 1994.) In 1997, the fund dispensed $11,000 in prizes for a law-student essay contest, $7,500 to law-student scholarships, and $7,500 to a Second Amendment symposium at Brigham Young University. While stressing that he does not claim any Standard Model scholar is a "hired gun," Bogus alleges, "their project clearly was, 'We're not getting anywhere with the courts, so let's attempt to develop a body of secondary authority supporting our proposition before we go back into the courts.'" Retorts Robert Cottrol, who sits on the board of trustees of the FCRLDF, "I think there is, frankly, almost a kind of intellectual McCarthyism implicit in that statement." Cottrol says he has never received a grant for research. And FCRLDF secretary Robert Dowlut, the deputy general counsel of the NRA and an author of several Standard Model legal articles, flatly denies Bogus's allegation that there has been a campaign to stimulate research on the Second Amendment. Bogus's allegations force the issue of just how much Standard Model scholarship is actually special-interest advocacy. These lines appear to blur in particular in the nonprofit group Academics for the Second Amendment, which takes the individual-rights position. Academics for the Second Amendment has received funding from a wide variety of sources, including the FCRLDF. In 1993 and again in 1995, the group published advertisements in The New Republic and National Review signed by a host of scholars voicing their support for the individual-rights view, including Levinson, Amar, and Van Alstyne (none of whom are members of the organization). It has also held invitation-only scholarly conferences across the country, which scholars receive free transportation to attend if they promise to write something on the Second Amendment at some point in the future. According to Academics for the Second Amendment's president, Joseph Olson, a law scholar at Hamline University who is also on the board of directors of the NRA, these conferences have generated a great deal of scholarship. "Counting Op-Eds, commentaries, articles by sociologists and criminologists, we've probably gotten fifty people to write something," he says. But Olson stresses that Academics for the Second Amendment doesn't care what scholars attending its conferences write, only that they do write. Regarding allegations of a "concerted campaign," he comments derisively: "That's the standard idea, the thing they teach you in law school: If the law's against you, argue the facts; if the facts are against you, argue the law; if they're both against you, attack your opponent. That's essentially what we have going on here." -------------------------------------------------------------------------------- If the Standard Model is the outcome of a concerted campaign, it is a campaign that admits a surprising amount of diversity. Many scholars in the individual-rights camp don't even feel comfortable with the term "Standard Model." Says Van Alstyne, "There isn't any Standard Model. It assumes a degree of complacent consensus that just isn't there." Levinson, Tribe, Amar, and Cottrol all have qualms about the term. Volokh adds: "Of course there are thoughtful dissenters, so if thoughtful dissent makes it 'non-Standard,' then it's not Standard. But I know of no standard definition of what's 'Standard.'" When it comes to the Emerson case, there is certainly no standard view among so-called Standard Modelers on whether Judge Cummings made the correct decision. Tribe has little problem with the offending statute in Emerson, commenting, "in the context of reasonable grounds to suspect people of committing and possibly being likely to repeat acts of violence against others, we restrict liberty in a great many ways." Levinson,on the other hand, has more difficulty criticizing Cummings's ruling. "I'm on the fence," he says. Cottrol is more definitely in Cummings's camp, as is Volokh. In fact, although Standard Modelers all support some version of an individual right to bear arms, they express a wide range of views on gun control. In a recent Harper's Magazine article on the Second Amendment, these two issues were taken as coterminous by the journalist Daniel Lazare, who wrote, "The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right. The Amendment does confer an individual right to bear arms, and its very presence makes effective gun control in this country all but impossible." From there, Lazare went on to argue that the Constitution was irredeemably flawed. But perhaps the straits are not so dire. In a recent joint New York Times Op-Ed, Tribe and Amar argued that both sides in the Second Amendment debate had overstated their case. While defending an individual right, the scholars also defended significant gun controls, writing, "Almost no right known to the Constitution is absolute and unlimited.... The right to bear arms is certainly subject to reasonable regulation in the interest of public safety. Laws that ban certain types of weapons, that require safety devices on others and that otherwise impose strict controls on guns can pass Constitutional scrutiny." But perhaps the best representative of a moderate position on guns turns out to be an unlikely candidate: Standard Model critic Michael Bellesiles. Because of Bellesiles's contributions to the Second Amendment debate, some in the individual-rights camp assume he is antigun. But actually, Bellesiles owns a number of guns and says he particularly enjoys antique weapons and shooting skeet. Through his research on the history of gun regulation in early America, Bellesiles has concluded that both preceding and following the passage of the Second Amendment, gun regulations and even gun censuses were commonplace. According to Bellesiles, the framers of the Constitution would have been shocked by today's often extreme libertarian opposition to gun regulation on Second Amendment grounds. "I'm a subscriber to Guns & Ammo, have been for a long time," says Bellesiles. "And in all the years I've read it, I've never read a single piece, a single article, that calls into question even a single firearm. You know, 'all guns made are good.' And I've never seen any debate in that magazine about the correct position to take toward gun regulation. 'All gun regulation is bad': There is no variation. So it's kind of a humorless bunch of people." Would Bellesiles like to see all guns outlawed? "Personally, no," he says. "But that's just a personal opinion. It's not a scholarly one, it's not based on anything, except for my personal desire. Just as I wouldn't want to see all cars outlawed, but I sure would like to see more bike lanes. I'd like to see fewer fools using guns, that's for sure. 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