Posted by Randy Barnett:
Mis (Not Quite) Quoted by the AP:
http://volokh.com/archives/archive_2007_12_30-2008_01_05.shtml#1199517721
Yesterday I engaged in an email interview with a reporter from the AP,
who today in [1]this story inaccurately attributes the following view
to me:
Randy Barnett, law professor at Georgetown University, agreed that
the argument is strained, and said that if the high court accepts
the notion that the right to bear arms is an individual right, it
would be hard pressed to turn around and allow the district and the
states to violate that right.
The district's interpretation "is at odds with the text and the
original meaning of the Second Amendment and the rest of the Bill
of Rights as well," Barnett said.
The actual quote is correct. The view attributed to me in the
italicized portion of the story, but not actually quoted, was not even
the subject of our exchange.
To the contrary, in my view, because the Second Amendment by itself
applies only to the federal government, whether or not states may
violate a right to keep and bear arms is a Fourteenth Amendment issue.
Originally, such an individual right to arms was meant to be protected
by the Privileges or Immunities Clause. Ahistorically today, it would
have to be "incorporated" into the Due Process Clause. Therefore, it
is quite easy to imagine the Supreme Court accepting an individual
rights interpretation of the Second Amendment and then not applying it
to the states via the Fourteenth Amendment. That issue is not on the
table (immediately at least) in the Heller case.
The interview actually concerned DC's claim that because the District
was LIKE a state, and because the Second Amendment only protected the
right of a state to have a militia (and also that it did not
originally interfere with the internal discretionary powers of
states), the Amendment did not apply to DC. It was this claim (in
bold) that I viewed as both strained and "at odds with the text and
the original meaning of the Second Amendment and the rest of the Bill
of Rights as well." Here is what I wrote in my very brief email:
This part of the District's argument depends entirely on its claim
that the Second Amendment only protects the rights of states to
preserve their militias. This is not what the amendment says. What
it says is that, given the importance of having a militia, the
"right" of "the people" (which everywhere else in the Bill of
Rights refers to individual rights) shall not be infringed. So
while the district's argument has been accepted by many courts of
appeals in the 20th Century, it is wrong.
Other than a report by the [2]Cybercast News Service of a talk I gave
at Brookings Institute that, by being badly written, inadvertently
made it appear as though I opposed the individual rights
interpretation of the Second Amendment, this is the first time I have
been misquoted by a reporter, except in this story the actual
quotation was indeed mine.
I am positive that this was an innocent oversight by the AP reporter,
and this is not the worst view with which to be wrongly associated.
However, because past quotes of mine in wire service stories have
spread widely on the net, although I doubt that this correction (or
even one by the AP itself) can catch up to this misattribution, I felt
it necessary at least to try to correct the record here.
References
1. http://ap.google.com/article/ALeqM5h99aa4jzfFB8xPGY6iZVII7xpxJAD8TVCV880
2. http://www.cnsnews.com/corporate/history.asp
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