----- Original Message ----- From: "Robert J. Spitzer" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Monday, October 13, 2003 3:20 PM Subject: Restrain your amazement
> In his comments on my 2000 Chicago-Kent Law Review article, Clayton Cramer is wrong in every instance. See below. > Regards, > Bob Spitzer > Verdugo-Urquidez is peripheral to Bob's argument, and his minor error does not undermine the premise of Bob's article. What would undermine it would be gaping discrepancies of substantive fact, such as attributing the provenance of the individual-right model to a 1960 law review article, when it appears in legal journals at least as early as 1874, see Dillon, John F., & Thompson, S.D., eds., The Right to Keep and Bear Arms for Private and Public Defence, 1 Central L. J. 259-261, 273-275, 285-287, 295-296 (1874). Available online at http://www.guncite.com/journals/index.html Another eye-popping omission would be attributing a modern provenance to the individual right reading while overlooking the widely-known individual right endorsements of Coxe, Tucker, Rawle, Story, and Cooley. I can understand overlooking the Dillon article, (charitably, since it was turned up by an Arizona software writer in his spare time so presumably a polisci prof being paid a $5000 honorarium might have found it) but the other examples are so heavily circulated in the very literature Bob researched as to be impossible to miss. For example Bob actually cited Steve Halbrook's article on Coxe. These 18th and 19th Century examples run directly counter to Bob's hypothesis and the substance of his article. It takes a theory to beat a theory, and Bob's alternative theory, under the heading "The Meaning of the Second Amendment," is an ambiguous insinuation that the amendment is applicable somehow to militia law, which he says "appertains" to Congress. What *precisely* is this hypothesis? That Congress has a right under the 2A? That the states have a right under the 2A? That the people have a 'right' but only if Congress allows the states to allow the people to exercise it? Since he has advanced it, I'd like to see Bob properly defend his Second Amendment theory, whatever it is. To give an example, if Writer X hypothesizes that the Full Faith and Credit Clause pertains only to the right of consumers to receive credit cards, it becomes his job to march to the library and look up the law and literature on the Full Faith and Credit Clause to see if he's guessed correctly. It's not enough just to hypothesize something, or point to the existence of credit cards as "proof" of his theory. If Bob and others want to hypothesize that the Second Amendment pertains to militia law, then they really must look up militia law and related literature, not gun-possession cases. If he doesn't know where to start I can direct him to my article at 79 U. Detroit Mercy L.R. 39. Otherwise all he's added to the literature is unresearched anti-theory. Bob's article fails, not because of misconstruction of Verdugo-Urquidez in a footnote, but because the main hypothesis is flatly disproved by obvious evidence, and because the alternative theory is never researched or tested. So Bob and I agree, for different reasons, that Clayton's criticisms miss the mark. (By the way, Bob, nobody paid or otherwise induced, or even invited me to write my article; I do disclose in a footnote that a now-defunct bipartisan group helped offset my submission expenses after the fact, but the article still cost me hundreds of dollars and untolled hours of uncompensated time.) Norman Heath
