I just ran across Professor Robert J. Spitzer's "Lost and Found: Researching The Second Amendment," which appeared in the issue of Chicago-Kent Law Review 76:349 [2000] that the Joyce Foundation paid for. As I read through Professor Spitzer's article, I am amazed at how many gross errors of fact it contains. Here's one especially amazing example:
"Such interpretations are false, as the Verdugo-Urquidez case has nothing to do with interpreting the Second Amendment. In fact, the case deals with the Fourth Amendment issue of whether an illegal alien from Mexico was entitled to constitutional protection regarding searches." What does the decision say? "Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and violent organization in Mexico that smuggles narcotics into the United States. Based on a complaint charging respondent with various narcotics-related offenses, the Government obtained a warrant for his arrest on August 3, 1985. In January 1986, Mexican police officers, after discussions with United States marshals, apprehended Verdugo-Urquidez in Mexico and transported him to the United States Border Patrol station in Calexico, California. There, United States marshals arrested respondent and eventually moved him to a correctional center in San Diego, California, where he remains incarcerated pending trial." Illegal alien? No. Spitzer goes on to write: "In the majority decision, Chief Justice Rehnquist discussed the meaning of the phrase �the people��given that the phrase appears not only in several parts of the Bill of Rights, but also in the Constitution�s Preamble in order to determine its applicability to a noncitizen. Rehnquist speculated that the phrase �seems to have been a term of art,� Verdugo-Urquidez, 494 U.S. at 265, that probably pertains to people who have developed a connection with the national community. Rehnquist�s speculations about whether the meaning of �the people� could be extended to a noncitizen, and his two passing mentions of the Second Amendment in that discussion, shed no light, much less legal meaning, on this Amendment." Is it a "speculation" when Rehnquist's opinion is joined by Justices White, O'Connor, Scalia, and Kennedy, and none of the other justices dispute that "the people" means the same thing everywhere it appears in the Constitution? Justice Stevens concurred in the result, and gave no disagreement about what "the people" means. Justices Marshall and Brennan disagreed with the result, arguing that "the people" included aliens illegally brought into the U.S. by government agents--but even they didn't argue that "the people" meant something different in the Second Amendment from the rest of the Constitution. Spitzer also observes: "In short, Levinson offers a bona fide constitutional argument proposing that vigilantism and citizen violence, including armed insurrection, against the government are legal, proper, and even beneficial activities within the Second Amendment umbrella. The idea that vigilantism and armed insurrection are as constitutionally sanctioned as voting is a proposition of such absurdity that one is struck more by its boldness than by its pretensions to seriousness. Yet it appears repeatedly in the individualist literature." What a concept! Our government was born in revolution--not by voting. Is anyone surprised that they guaranteed a "right of the people" to be armed--but didn't even guarantee every free white man a right to vote? (Look carefully: the Constitution left qualifications for voting to the states.) Clayton E. Cramer [EMAIL PROTECTED] http://www.claytoncramer.com Being a citizen of the Republic is not a spectator sport.
