Regarding my 2000 Chicago-Kent article discussed below, the data set that forms the
basis for analysis in the article is articles published in law journals and cited in
the "Index of Legal Periodicals," which only began publication in 1887. Thus, I
missed the 1874 article, "The Right to Keep and Bear Arms" published in four
installments in 1874, although this article, too, adopts a militia view pertinent to
its discussion of the Second Amendment (I learned of this article after publication
of my 2000 piece, and cited it in a subsequent publication). None of the other
sources cited below (Coxe, Tucker, Rawle, Story, and Cooley) were law journal
publications, so they were not a part of the analysis in my 2000 article, although I
do discuss most of these writers elsewhere, secondary though they are (especially
Coxe) to the question of interpreting the meaning of the Second Amendment.
As for the discussion in my article under the heading "The Meaning of the Second
Amendment," this is a brief summary of, as it says, the meaning of the Second
Amendment, as it was expressed during the First Congress in its formulation of the
Second Amendment, and as interpreted by the Supreme Court and lower federal courts.
Thus, this discussion is not a "theory" but a brief digest of the court's view of the
amendment. Any quibble with this view is with the courts and how they have viewed the
meaning of the amendment. Again, the main purpose of this article is not to restate
the arguments regarding the Second Amendment (although those arguments needed to be
summarized for the sake of clarifying the rest of the discussion and analysis), but to
chronicle the provenance of Second Amendment writings in law journals; and with
respect to law journals, the individualist view does indeed date only to the 1960
William and Mary piece. In all, 13 prior law journal articles (including the 1874
article (counted as one) and an article published by Ansell in 1917 which was also not
listed in the Index to Legal Periodicals under the subject headings of "weapons" or
"right to bear arms") were published before 1960, and all of them adopt the militia
view.
Regards,
Bob Spitzer
-----Original Message-----
From: J. N. Heath [mailto:[EMAIL PROTECTED]
Sent: Thu 10/16/2003 8:32 AM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Restrain your amazement
----- 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
