[CTRL] 2nd Amendment (1)

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</A> -Cui Bono?-

>From http://www.linguafranca.com/0002/showdown.html


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Volume 10, No. 1 - February 2000
More in this Issue...
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.

>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
provisions 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
incidents 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 Cummings'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.

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. Can we arrange that?"

Chris Mooney is a freelance writer based in New Orleans. His writings have
appeared in the Times Literary Supplement, USA Today, and LF.

Copyright © 2000 Lingua Franca, Inc. All rights reserved.

{{<End>}}

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