I can't see from Paul's clipped example where Bob Spitzer has reconciled his hypothesis of a modern provenance for the individual right with the contrary evidence.
Irving Brant, being a modern commentator, is a separate issue. But take the referenced Brant quote, which I set out more fully: "The Second Amendment, popularly misread, comes to life chiefly on the parade floats of rifle associations and in the propaganda of mail order houses selling pistols to teenage gangsters . . . the purpose of the Second Amendment was to forbid Congress to prohibit the maintenence of a state militia. By its nature, that amendment cannot be transformed into a personal right to bear arms, enforcable by federal compulsion against the states." Now contrast Brant's above assertion with what he indignantly emphasizes 150 pages earlier in the same book: "In the entire Senate debate on the Fourteenth Amendment, running from May 23 to June 8, *not a single senator challenged Senator Howard's declaration that Section 1 made the first eight amendments enforcable against the states.*" [emphasis original to Brant] See it? Brant wants an expansive 14th Am that makes the first eight amendments enforceable against the states. But when the gun-club float joins the parade, the 2nd Am becomes "by its nature" un-enforceable against the states as an individual right. So it is . . . a state power that is enforceable against the states? Or it's a federal power enforceable against the states, embodied in a Bill of Rights that enumerates limits on Congressional power? Note how, in the top quote, Brant asserts that the Second Amendment purports to forbid Congress to abolish the militia. This is a testable hypothesis. The test is in militia law. And the answer is that Congress can abolish the militia, according to the Supreme Court in Selective Draft Law Cases. Even the 1st Cir. explicitly acknowledged this in Dukakis v. Dep't of Defense, Second Amendment notwithstanding, . Opponents of federal conscription have historically argued its unconsitutionality on the grounds that it impermissibly allows Congress to eliminate the militia in creating an army. This argument was advanced at length by the Hartford Convention, which did not think to cite the Second Amendment. The same anti-draft argument was advanced by the Penn. Supreme Court in 1863 in Kneedler v. Lane, where a lone concurring justice cited the Second Amendment in the middle of a long rambling opinion. But the majority's decision was overturned weeks later. The Supreme Court upheld conscription in 1918, specifically acknowledging that it implies the elimination of state militia, and that is where the law stands today. The cavalier assertion that the Second Amendment is a feature of militia law has almost zero basis in law or history. It exists almost entirely in dicta from gun cases, almost all of those modern. From my perspective, Brant and Bob Spitzer are throwing stones from the roof of a glass house. Norman Heath ----- Original Message ----- From: "Blackman, Paul" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Thursday, October 16, 2003 9:32 AM Subject: Re: Restrain your amazement > -----Original Message----- > From: J. N. Heath [mailto:[EMAIL PROTECTED] > Re: Robert Spitzer's article: > 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. > > > Mr. Spitzer might have ignored those folks in his article, but his book, The Politics of Gun Control, cites them. After noting that Supreme Court and lower court decisions suggest a militia rather than individual right interpretation, and citing Burger, C.J., in his famous Parade law review article, he then goes on to a subsection on "The Textbook Bill of Rights" (pp. 42-43, 56): > "Added confirmation of the courts' understanding is likewise found in most standard texts on the Bill of Rights. From classic analyses from the nineteenth century, like those of Joseph Story and Thomas Cooley,60 to modern treatments, the verdict is the same. In his classic book on the Bill of Rights, Irving Brant says: 'The Second Amendment, popularly misread, comes to life chiefly on parade floats of rifle associations and in the propaganda of mail-order houses selling pistols to teenage gangsters.'... > "60. Joseph Story, Commentaries on the Constitution (Durham, N.C.: Carolina Academic Press, 1987), 708; and Thomas M. Cooley, General Principles of Constitutional Law (Boston: Little, Brown, 1898), 298-99. Cooley did not include discussion of the important Presser case until the subsequent (fourth) edition of this book, published in 1931, when he buttressed the standard interpretation found in the writings of other constitutional scholars." > > PHB >
