UNDER FIRE: THE NEW CONSENSUS ON THE SECOND AMENDMENT

Randy E. Barnett [FNa]

Don B. Kates [FNaa]

Emory Law Journal (Fall 1996)

45 EMORYLJ 1139

Table of Contents

Introduction: *1141 Reacting to the New Scholarly Consensus

I. Ad Hominem Attacks on Legal Scholars .................... 1143

A. Deceitfully Ignoring Case Law ........................ 1151

1. Supreme Court Discussions of the Amendment ........... 1152

2. Lower Federal Court Decisions ........................ 1160

3. Second Amendment Scholars Have Not Ignored Judicial

Opinions .............................................. 1165

4. A Bizarre Theory of Constitutional Meaning ........... 1167

B. Other Supposed Scholarly Deceptions .................. 1169

1. William Van Alstyne .................................. 1169

2. Robert Cottrol and Raymond Diamond ................... 1173

3. Sanford Levinson ..................................... 1175

C. Impugning the Integrity of Second Amendment Scholars . 1179

1. Are You Now, or Have You Ever Been, a Member of

Academics for the Second Amendment? ................... 1179

2. Falsifying the Scholars' Actual Views ................ 1188

3. The Relevance of Guilt by Association ................ 1191

II. Factual Errors and Sloppiness .......................... 1192

A. Fudging the Count in Order to Minimize the Scholarly

Consensus ............................................. 1192

B. Defaming the 'Necromerchants' ........................ 1196

1. Marketing Candy-Colored Guns for Kids ................ 1197

2. Marketing Fingerproof Guns to Criminals .............. 1197

3. The NRA Helped Assassinate President Kennedy ......... 1198

4. The 'Assault Weapon' Hoax ............................ 1199

5. Race, Racism, Falsehood, and the NRA ................. 1202

III. The Militia-Centric Theory of the Second Amendment ..... 1204

A. A Makeweight Conception of the Second Amendment ...... 1204

B. Problems with the Militia-Centric Theory ............. 1207

1. The Constitutional Text .............................. 1207

2. The Founders' Understanding of the Amendment ......... 1210

3. 'Firearms Fundamentalists': The Founders' Beliefs

About Guns ............................................ 1214

4. Subsequent Commentary on the Constitution ............ 1219

5. Congressional Construction of the Second Amendment ... 1222

C. Does the Initial Purpose of a RightLimit Its Scope? . 1224

D. Evading the Text by Claiming the Amendment Is an

Anachronism ........................................... 1225

1. Suppose the Amendment Is an Anachronism .............. 1225

2. The Amendment Is Not an Anachronism .................. 1228

E. The 'Insurrectionary' Implications of the Second

Amendment ............................................. 1232

IV. Guns and Public Safety ................................. 1234

A. Vilifying One's Opponents ............................ 1234

B. The Criminology of Guns and Violence ................. 1236

1. Foreign Comparisons .................................. 1236

2. Defensive Gun Use in the United States ............... 1242

3. The Ordinary Gun Owner and the Aberrant Murderer ..... 1244

4. The 'More Guns = More Murders' Shibboleth ............ 1247

5. The Tragedy of Homicide Among Young African-American

Urban Males ........................................... 1251

C. The Prohibitionist Goal of the Gun Control Movement .. 1254

Conclusion: 1259

Shooting the

Messengers

*1141 Introduction: Reacting to the New Scholarly Consensus

Until the early 1980s the Second Amendment had received little attention or interest from legal scholars. [FN1] In 1981 Northwestern University law professor Daniel D. Polsby ridiculed the individual rights view of the Amendment as "a lot of horsedung." [FN2] But as of 1994, having acquainted himself with the rather substantial literature of the intervening years, Polsby commented:

(A)lmost all the qualified historians and constitutional-law scholars who have studied the subject (concur). The overwhelming weight of authority affirms that the Second Amendment establishes an individual right to bear arms, which is not dependent upon joining something like the National Guard. It goes without saying that like all constitutional rights, the right to keep and bear arms is subject to reasonable regulation consistent with its purposes. [FN3]

Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment. [FN4]

*1142 According to the broad individual right view, the right of the people to keep and bear arms is to be treated the same as the other rights of the people specified in the Constitution--no more and no less. Like the other rights mentioned in the Bill of Rights, it is a right to be asserted by individuals against infringement by government. Like other rights in the Bill of Rights, it is not absolute, but neither is it a hollow shell which legislatures can ignore with impunity. Nor does it merely refer to the right of a state to have a militia, as many, perhaps most, law professors assumed before there was serious scholarship on the Second Amendment.

Despite this scholarship, on May 2, 1994, the broad individual right view was denounced as a gun-lobby "fraud on the American people" by twenty-six law professors in an advertisement sponsored by an anti-gun group which appeared in the American Lawyer and other publications. [FN5] The only authority they cited supporting their view was a quotation from an article by former Chief Justice Burger in Parade magazine. [FN6] Though a number of signatories are distinguished scholars, significantly, none had ever delved into the issues sufficiently to publish a scholarly article on the subject.

One of them has repaired that deficiency by writing (the all-too- appropriately named) Gun Crazy, [FN7] the first article to appear in an important law review in almost thirty years disputing this now-predominant individual right view of the Second Amendment. As Gun Crazy presents it, the near-unanimous consensus among historians and legal scholars who have researched the issues is an artifact of a sinister concerted effort by pro-gun professors and fellow travelers. Gun Crazy argues that the gullible legal and scholarly communities are falling victim to a gun-lobby-organized conspiracy "to flood the law reviews with friendly scholarship from sympathetic law professors." [FN8]

Our aim in this Article is two-fold: First, we intend to put the academic discussion of the Second Amendment back on its constructive path by rebutting charges made in Gun Crazy against scholars who have contributed to the new consensus that the Second Amendment protects an individual right. To that end, in Part I, we discuss in detail the false charges of dishonesty and *1143 conspiracy that Gun Crazy levels against scholars whose views it finds uncongenial. In Part II, we examine the factual errors in Gun Crazy.

Second, we present the textual, structural, historical, and criminological evidence that supports this new consensus; evidence about which most academics, even those who write about other areas of constitutional law, are largely unaware. In Part III, we examine the merits of the interpretation proferred by opponents of an individual right to keep and bear arms: the militia-centric conception of the Second Amendment. We analyze how textual, historical, and structural considerations each argue against such an interpretation and in favor of an individual rights approach. Finally, in Part IV, we consider the issue that is really motivating those who reject an individual rights interpretation in favor of a militia-centric conception of the Second Amendment: the allegedly adverse effect of gun ownership on public safety. Here we present the latest findings of criminologists on the effects of guns and gun ownership on violence.

I. Ad Hominem Attacks on Legal Scholars

Gun Crazy portrays the near-unanimous scholarly literature as "pro-gun lobby" propaganda. One of Gun Crazy's tactics is to reject twenty-five law review articles defending the individual right view as biased per se. These are articles by nonacademics whom Gun Crazy identifies as employees of the NRA and other pro-gun groups or whom Gun Crazy denigrates as "(g)un-rights litigators and activists," [FN9] "leading gun-rights litigators and lobbyists," [FN10] and "warhorses." [FN11] At the same time, Gun Crazy derives its substantive arguments on the Second Amendment from the handful of articles on the other side which it cites without ever informing readers that their authors are officers or paid employees of anti-gun groups. [FN12]

*1144 It is unnecessary to quibble over the matter for, even when the articles by nonacademics are deducted, the consensus among full-time law professors and other academics who have studied the matter still overwhelmingly supports the broad individual right view of the Amendment. [FN13] Based on the criteria it *1145 selects, post-1972 law reviewarticles by law professors, Gun Crazy and just one other law review article deny the broad individual right view. [FN14] Several more law professor-authored articles catalog positions taken by each side without themselves supporting either, [FN15] and there is also student work on both sides. [FN16] After our manuscript was written, but before its publication, we became aware of the existence, or impending publication, of several more law review articles. Though the authors are not associated with the gun lobby, all support the broad individual right position. [FN17]

*1146 Gun Crazy suggests that "one's scholarly views of the Amendment are determined primarily by one's position on gun control." [FN18] This is demonstrably false, at least with respect to those scholars who support the individual right interpretation. The great majority of historians and law professors who have written on the subject have never owned a gun in their lives and do not desire to own guns or to have any association with the gun lobby. Their motivation is primarily one of simple intellectual integrity, but there is a secondary motivation as well: the need to take rights seriously, even rights with which they may not agree. [FN19]

Many of these professors have long been closely associated with the ACLU and the NAACP Legal Defense and Education Fund, Inc. As former ACLU national board member Alan Dershowitz has said:

Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like. [FN20]

*1147 To discriminate among the constitutional rights that one is willing to defend is ruinous to the credibility of those who exhort or hector public officials to honor rights with which those officials may disagree or which they may wish to disregard. [FN21]

We recognize, incidentally, the novelty and inappropriateness of discussing such personal matters in a scholarly forum. That only illustrates the unfortunate effect of Gun Crazy's descent into falsehood, guilt by association, and character assassination as modalities of legal analysis. Of course, some of the scholars Gun Crazy assaults do entertain views on firearms policy that differ from those of Gun Crazy's author, but this does not impugn their scholarship on the Second Amendment. Moreover, Gun Crazy misrepresents their views by portraying them as "gun lobby" stooges and champions of pro-gun irredentism. In fact, at least two scholars it so assaults argue that the great majority of the public, including most gun owners, recognize the need for sensible gun controls--and that this majority is dissipated because gun owners are driven into the arms of the NRA by the extremist anti-gun goals and vituperative rhetoric that Gun Crazy epitomizes. [FN22]

Gun Crazy describes itself as "an Article about . . . deceit, misperception, and dereliction of responsibility . . . ." [FN23] As we shall show in this Part and in *1148 Part II, Gun Crazy is projecting its own deficiencies onto those who share the individual right view of the Second Amendment. First, Gun Crazy repeatedly harps on the need for truth, the virtues of truth, and the "dialogic responsibility" [FN24] of scholars, politicians, and journalists to tell the truth. But the truth is that Gun Crazy presents a pastiche of ignorant and/or careless factual errors, outright lies, half-truths, suppressed facts, tendentious reasoning, ad homines, epithets, and assumed premises conveyed in hyper-emotional verbiage. The most charitable view that may be taken of many of Gun Crazy's assertions is that the article is beset by its own slovenly research and by credulous dependence on partisan sources whose partisanship Gun Crazy conceals from its readers.

Second, Gun Crazy solemnly speculates that the reason so few law professors have been willing to speak out against the gun lobby may be that "real political controversy and ugly cross-talk, may simply be too off-putting for the taste of many in the legal academy." [FN25] The fact is that Gun Crazy is a paradigm of irrelevant "ugly cross-talk" and ad homines in the law review debate over the Second Amendment. Its apparent purpose is to deter the publication of politically incorrect scholarship by heaping calumny and vituperation on scholars whose research has led them, however reluctantly, to conclusions it finds uncongenial.

Although Gun Crazy also advances arguments for its militia-centric view of the Second Amendment (which we examine below), [FN26] these consist in a rehash of the points made in more obscure articles published by paid advocates for anti-gun groups--whom Gun Crazy does not so identify, though it takes great pains to so identify articles by NRA employees. Indeed, we hasten to note that, despite the notorious acrimony of the popular gun debates, rival expositions of the Second Amendment by paid employees of anti-gun and pro-gun groups are far more honest and intellectually compelling than is Gun Crazy, and they have in the main not resorted to the epithets, ad homines, and falsehoods that mar Gun Crazy. Gun Crazy represents a departure from standards of civility and scholarship that heretofore have prevailed in the legal literature on the Amendment. [FN27]

*1149 To discredit the overwhelming consensus of scholarly opinion supporting the politically incorrect view of the Second Amendment, Gun Crazy employs techniques most often associated in this country with the late Senator Joseph McCarthy (R-WI). The charge of McCarthyism is often so lightly made that we hesitated before making it. Yet, as we show in this Part, there is no more descriptive a label for the character assassination, guilt by association, and conspiracism with which Gun Crazy defames law professors whose views it finds uncongenial. We realize that these, like the accusations leveled by Gun Crazy at Second Amendment scholars, are serious charges. To substantiate them will require a detailed analysis of Gun Crazy's claims. For those who find the detail in which we address these accusations tiresome, we suggest skipping ahead after reading only as long as is necessary to satisfy themselves of the falsity of Gun Crazy's charges.

Gun Crazy takes a two-step approach. The first step is to accuse the "gun lobby"--referring to those associated with political activism in defense of the right to own and possess guns--of consciously lying about the true meaning of the Second Amendment. Gun Crazy is replete with such phrases as:

Dishonesty also dominates the gun lobby's discussion of (case law) on the Second Amendment. [FN28]

the gun lobby's dishonest manipulation of constitutional meaning [FN29]

Second Amendment deception [FN30]

Fabricated Meanings of the Second Amendment [FN31]

the constitutional fish story told by the gun lobby [FN32]

a monumental myth [FN33]

a constitutional deception [FN34]

phantom constitutional barriers [FN35]

misinformation campaign [FN36]

Second Amendment sleight-of-hand [FN37]

*1150 the gun lobby's constitutional distortion [FN38]

the gun lobby's Second Amendment misrepresentation [FN39]

The terms "fabrication," "deception," and "deceit" appear repeatedly throughout the article.

The second step is to charge or imply that seemingly neutral scholars have reached the same duplicitous conclusions because of their concealed connections to the gun lobby.

The deception that leading constitutional scholars are accused of perpetrating on the American public is two-fold: First, they are accused of concealing from their readers the supposed fact that courts have uniformly rejected the individual right conception of the Second Amendment. Second, they are accused of deliberately distorting the historical evidence they cite in support of the individual right conception, indeed of borrowing their distorted evidence from gun-rights activists. As we shall see, when separated from the rhetoric, the facts alleged to justify these serious charges--assuming they were true--are remarkably thin. In any event, as we shall show, the facts alleged are false.

In sum, Gun Crazy portrays major figures in constitutional law as propagandists masquerading as scholars. Following their fixed agenda of erecting "phantom constitutional barriers" [FN40] to gun control, they participate in duping gullible legal scholars and the general public into accepting "the gun lobby's well-orchestrated propaganda campaign"; [FN41] they know the truth, but deny it in "dereliction of (their) dialogical responsibility" [FN42] as scholars to "speak the 'truth"'; [FN43] they are in the forefront of the "rabidly vocal minority" [FN44] being "effectively mobilized" [FN45] by the NRA "to drown out and shout down virtually all other voices in the constitutional conversation." [FN46] Even after being informed of the falsity of these charges, Gun Crazy's author's unrepentant commitment to this method of discourse is revealed by his subsequent statement *1151 to a reporter that "(t)he majority of these articles could have been spewed out of the N.R.A.'s word processor." [FN47]

A. Deceitfully Ignoring Case Law

Gun Crazy's principal charge is that Akhil Reed Amar, Sanford Levinson, William Van Alstyne, Robert Cottrol, and others deliberately deceive readers by not acknowledging (or acknowledging "fully" [FN48]) what Gun Crazy repeatedly misdescribes as fifty years of unanimous federal court rejection of the individual right view of the Amendment. [FN49] "The failure" to tell the truth, according to Gun Crazy, "lies in refusing to mention the scope of the case law that confines the 'right to bear arms' to only the narrowest of circumstances." [FN50]

Notice the slippery nature of this charge: "refusing to mention" sounds like the sanctionable violation of professional ethics committed by a lawyer who deliberately omits relevant case law when making a legal argument. [FN51] But when "the scope" is added, an element of judgment has been introduced. The failure now may consist only of a disagreement about the significance or meaning of the case law rather than a concealment of relevant data.

Moreover, Herz expresses an antiquated, if not completely idiosyncratic, view of what he terms the "dialogic responsibility" of scholars. Even in areas where the case law is far more settled than that which concerns the right to arms, scholars are not limited to addressing issues in terms of "black letter law." Many constitutional theorists understand their task as scholars to be to substantiate their constitutional interpretations with the aim of influencing *1152 future judicial decisions. The fact that courts may have decided questions differently than would the theorist is precisely what motivates the research. It is far from clear to us that scholars evaluating, for example, the original understanding of a statute or constitutional provision are ethically bound to emphasize or even mention the fact that courts, which may not have even considered the scholars' approach, have adopted a different understanding.

Whether the charge of "deceit, misperception, and dereliction of responsibility," [FN52] is fair when referring to the omission of case law in a scholarly article, in this case it is wrong on both counts. The cases are not monolithic and Second Amendment scholars have not ignored them.

As we shall now show, Gun Crazy only attains its supposedly "broad," [FN53] "clear" [FN54] and "striking judicial consensus" [FN55] by misstating opinions, misconstruing dicta as holdings, and failing to disclose contrary opinions. Moreover, none of the opinions cited in Gun Crazy discusses the historical research that has led to the prevailing scholarly consensus. In most of the cases no more than a sentence or two is addressed to Second Amendment issues.

1. Supreme Court Discussions of the Amendment

Despite its claims about the definitive effect of judicial construction, Gun Crazy eschews anything beyond brief reference to Supreme Court opinions which concern the Amendment. This is necessary because neither the Court's treatment of the Amendment discussed in Gun Crazy nor those treatments not mentioned in Gun Crazy square with Gun Crazy's characterization of them as monolithic.

a. Supreme Court Opinions Discussed by Gun Crazy

In United States v. Miller, [FN56] the only Supreme Court case to consider explicitly the nature and scope of the people's right to keep and bear arms, the Court held that an indictment should not have been dismissed on the blanket theory that any law taxing and requiring registration of sawed-off shotguns *1153 violated the Second Amendment ipso facto. Neither of the indicted defendants were, or claimed to be, members of the militia, or of any military group. Without suggesting that they needed to allege such a status, the Miller Court reversed and remanded the case, stating that:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. [FN57]

Gun Crazy claims that the Court in Miller:

(W)ent only as far as was necessary to dispose of the case before it. The Miller holding most plausibly means only that it is a necessary condition that a firearm be useful to the militia and an individual's service therein, not that military utility is a sufficient condition to grant constitutional protection. The individual using the firearm still must be doing so in the context of service in a government-organized (not independent) militia. [FN58]

Although we do not claim that the meaning of the opinion in Miller is beyond dispute, this passage from Gun Crazy is revealing for a number of reasons. First, its claim that the Court "went only as far as was necessary to dispose of the case before it," would be plainly wrong had the Court accepted Gun Crazy's "narrow, militia-centric" [FN59] theory of the Second Amendment. To the contrary, the Court would not have had to go nearly as far as it did, but could simply have reversed on the ground that the defendants lacked standing to raise a Second Amendment challenge because they were not members of a "government-organized" state militia. [FN60] Unless the Court accepted that gun ownership by ordinary citizens not involved in a "government-organized" militia is a right protected by the Amendment, the defendants simply were in no position to challenge the law. The only reason the *1154 Court had to remand to consider whether a sawed-off shotgun is the kind of firearm the Amendment protects is that the Justices accepted, at least implicitly, that individuals do have standing to invoke the Second Amendment. Thus, Gun Crazy's claim that "(t)he Miller holding most plausibly means only that it is a necessary condition that a firearm be useful to the militia and an individual's service therein, not that military utility is a sufficient condition to grant constitutional protection" [FN61] is a highly implausible law office distinction.

Second, Gun Crazy claims that, "(t)he individual using the firearm still must be doing so in the context of service in a government-organized (not independent) militia." [FN62] Gun Crazy quotes no language to this effect because there simply is nothing in the opinion that says any such thing. Nor has the Supreme Court ever explicitly or implicitly adopted such a theory. Therefore, it is improper to suggest, as we think the passage quoted above [FN63] on the whole does, that this was the holding of Miller. It is particularly improper in light of the fact, which is neither acknowledged nor denied in Gun Crazy, that its narrow militia-centric theory was argued to the Court. The brief for the United States, the only brief filed in the case, "argued that the (Second Amendment) right was a collective one that (only) protected the people when carrying arms as members of the state militia." [FN64] The Court failed to adopt this militia-centric theory despite the fact that the appellee-defendants filed no brief in the case.

To us, it seems the "most plausible" interpretation of the Miller Court's order to remand was that it rejected the view Gun Crazy advocates. [FN65] Moreover, *1155 in contrast to Gun Crazy's use of the term "government-organized militia," the Court described a militia as follows:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of (the) Colonies and (the) States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. [FN66]

Once again, while far from clear, this passage is not inhospitable to the view that it is a private individual right to keep and bear arms which is protected. For only if there existed such a "body of citizens" in possession of "arms supplied by themselves," could they, should the need arise, be "enrolled for military discipline" to act "in concert for the common defense."

We consider the relationship between the Militia Clause and the individual right to keep and bear arms at greater length below; [FN67] at this juncture the important issue is this: Is a scholar who disagrees with Gun Crazy's interpretation of Miller, and says so, engaging in "deception"--a term that Gun Crazy uses nine times in the article? [FN68] Would scholars who ignore this enigmatic case to present their own view of "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators" [FN69] be engaging in "dereliction"--a term that Gun Crazy uses twelve times--of their responsibility as scholars? [FN70]

*1156 Gun Crazy also discusses two nineteenth century Supreme Court cases, United States v. Cruikshank, [FN71] and Presser v. Illinois. [FN72] Gun Crazy emphasizes that these nineteenth century cases hold, as they do, that the Second Amendment does not apply against the states, either by its own force or by incorporation through the Fourteenth Amendment, [FN73] and that the Supreme Court "has not seen fit to revisit those earlier decisions, refusing to grant certiorari in any of the cases dismissing Second Amendment challenges to state regulations on nonincorporation grounds." [FN74] Then Gun Crazy criticizes "gun-rights activists" for arguing "that these decisions are meaningless because they came prior to the onset of the modern incorporation doctrine." [FN75]

Gun Crazy fails to mention, much less address, the general agreement among those scholars who have addressed the issue that the Privileges or Immunities Clause of the Fourteenth Amendment was specifically intended to incorporate the personal right to arms. [FN76] By confining its discussion of these two cases to the issue of incorporation, Gun Crazy misleadingly fails to note that, in both cases, the Court refused to apply the right to keep and bear arms to the states, not because it was a collective right or because it was a militia- centric right, but because the Fourteenth Amendment did not empower the courts to protect any individual rights mentioned in the Bill of Rights. That is, the Court treated the Second Amendment as an individual right fully on par with other parts of the Bill of Rights construed in the same cases. [FN77] This *1157 fact undermines Gun Crazy's assertion that a judicial monolith, whose existence no honest scholar can deny or ignore, has consistently rejected a broad individual right when construing the Second Amendment.

Gun Crazy assigns to a brief and misleading footnote one of the Supreme Court's most important modern mentions of the Second Amendment. In United States v. Verdugo-Urquidez [FN78] the Court noted that, as the phrase "right of the people" is used throughout the Constitution, it always denotes citizens and their rights against government. In focusing on the Fourth Amendment, the case suggests that the words "the people" are to be interpreted in pari materia as they appear in the First, Second, Fourth, Ninth, and Tenth Amendments, and in the body of the Constitution as well. [FN79] After suggesting this, the Court proceeded to recognize, as it had to, that "the people" is used in contrast to the "state," and is equated at least to the entire individual citizenry (although it may not include aliens who lack residency or other connection to the country). [FN80]

Gun Crazy's sketchy description of the case in a footnote fails to explain Verdugo-Urquidez sufficiently for readers to understand that the Court is rejecting the textual contradiction inherent in any approach which, like Gun Crazy's, requires giving "the people" a wholly different meaning in the Second Amendment than in the rest of the Bill of Rights. Having ducked that issue, Gun Crazy is able to get by with the following misleading response:

the Court's comment about "the people" does not even begin to address the central question of the Second Amendment's scope: whether the *1158 right to arms applies to "the people" for all purposes, or only in connection with militia service. [FN81]

Of course, no affirmation of any broad individual right retained by the people mentioned in the Constitution "address(es) the central question of (its) scope." This is as true of the right to freedom of speech as it is of the right to keep and bear arms.

Verdugo-Urquidez is both inconsistent with the commonly proffered "state's right to form a militia" interpretation of the Second Amendment and consistent with the broad individual right interpretation. In no manner can it fairly be interpreted as part of a consistent judicial consensus that rejects the broad individual right approach and that all honest legal scholars must acknowledge when offering their own interpretation.

b. Supreme Court Opinions Omitted by Gun Crazy

In addition to distorting the cases it cites to make it appear that "the courts have consistently found that the Second Amendment guarantees a right to bear arms only for those individuals who are part of the 'well regulated Militia,"' Gun Crazy omits some cases as well.

Gun Crazy contains no discussion of the earliest mention by the Supreme Court of the right to keep and bear arms in Chief Justice Taney's justly infamous opinion in Dred Scott. [FN82] As an argumentum ad horribilis, Chief Justice Taney emphasized that to hold that blacks could be citizens would involve accepting that they enjoyed all the rights of citizens: "the full liberty of speech . . . and to keep and carry arms wherever they went." [FN83] Like the Founders and the nineteenth century commentators we discuss below, [FN84] Taney mentioned the right to arms without differentiating it from other constitutional rights he mentions in the same passage, including freedom of speech and assembly, jury trial, and against self-incrimination. [FN85] And contrary to the militia-centric thesis advocated in Gun Crazy, Taney's opinion *1159 assumed that all white citizens then enjoyed the guarantee of an individual right "to keep and carry arms wherever they went" [FN86] without making any connection of this right to militia service. As discussed below, Taney's comments represent a universal understanding in his generation--the generation which followed that of the Founders--of the Amendment as an individual right not necessarily connected to the militia. Though abolitionist legal theorists disagreed with Taney on virtually everything else, they agreed with him on this. [FN87]

In addition, Gun Crazy omits any reference to two other nineteenth century Supreme Court cases that assume the right referred to in the Second Amendment is of an equal status to other constitutional rights. [FN88] Of greater significance is that the latest Supreme Court opinion mentioning the Amendment does the same thing. In their landmark joint opinion in Planned Parenthood v. Casey [FN89] Justices Kennedy, O'Connor, and Souter quoted with approval Justice Harlan's statement that the "full scope of . . . liberty" is not limited to "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." [FN90] Casey reaffirmed the right of privacy, a right it viewed as belonging to an individual and that can be asserted by the individual against the federal government or a state. The Justices used this quote from Justice Harlan to convey the view that such an unenumerated right had the same constitutional status as all the enumerated rights in this list. All these rights retained by the people are considered by *1160 the Court to be on a par. No mention of a militia-centric qualification is made.

None of these discussions receives any mention in Gun Crazy. Though all are no more than very short dicta whose meaning or significance are open to question, they should have merited particular attention in Gun Crazy, which purports to show the existence of a clear, broad, and striking judicial consensus that legal scholars are fraudulently ignoring.

2. Lower Federal Court Decisions

When criticizing Second Amendment scholars who have discussed Supreme Court opinions, often at length though not to Gun Crazy's satisfaction, Gun Crazy upbraids them for ignoring lower court decisions. "It requires an advanced case of Supreme Court-only tunnel vision" Herz says,

to ignore more than five decades of consistent interpretation from the federal courts. . . . Every other federal court to consider the Second Amendment subsequent to the Miller decision has adopted a narrow militia- centric view of the right to bear arms. When scholars ignore that consistent case law, they perpetuate the ignorant state of our gun control discourse. [FN91]

According to Gun Crazy, there is a unanimous and unbroken consensus in the lower federal courts:

Every federal appellate decision since Miller has rejected the broad- individual-rights position and focused instead on whether use of a weapon was related to maintenance of a well-regulated militia. Every such court faced with the gun lobby's claim that Miller extends constitutional protection to all weapons with military utility has squarely rejected that assertion. [FN92]

An examination of the cases Gun Crazy discusses--and those it does not--fails to support this claim. Although most of its case citations are generally accurate, some of what Gun Crazy characterizes as holdings are actually dicta; and it suppresses facts that crucially undercut its claims about how dispositive this lower federal court case law is.

*1161 Consider the dissonance between two things Gun Crazy asserts (though at different points in the article and without noting their connection): (a) that "firearms are virtually unregulated" [FN93] in the U.S., especially by the federal government; and (b) that "more than fifty years of settled jurisprudence" proves "no gun control law restricting or regulating any aspect of private purchase, use, or possession of firearms should see invalidation on Second Amendment grounds." [FN94] Now if firearms are "virtually unregulated," how likely is it that the cases are numerous and definitive enough to dispositively exclude the possibility of constitutional invalidation?

This question is not merely a rhetorical one. For it turns out that almost all the cases on which Gun Crazy relies involved firearms that were illegally possessed by persons previously convicted of a felony. [FN95] The proposition that laws designed to disarm felons do not violate state or federal right to arms guarantees is one that has been championed by the NRA since the 1910s--about 50 years prior to the existence of a national anti-gun movement. [FN96] Although some of the cases Gun Crazy cites do ground their result on the collective rights theory, many others simply affirm that the Second Amendment does not bar laws against felons possessing arms. That is a position fully acceptable to the NRA's leadership [FN97] and to those who, in Gun Crazy's view, "share the extreme views of the NRA." [FN98]

Gun Crazy does address this interpretation of the cases, but terms it "disingenuous" because "it fails to take account of the handgun and machine gun *1162 bans upheld in Quilici and Farmer, respectively." [FN99] Farmer v. Higgins, [FN100] however, does not uphold a machine gun ban against constitutional challenge. Indeed Farmer says literally nothing about the Second Amendment. The issue to which it expressly limits itself is statutory interpretation and the harmonizing of federal machine gun laws. [FN101] Nonetheless, Gun Crazy thrice parenthetically characterizes this case as follows: "dismissing as without merit appellee's claims that the Second Amendment provides a right to possess machine-guns." [FN102]

In Quilici v. Village of Morton Grove, [FN103] involving a municipal ordinance, not a federal law, the court held, not that the Amendment permits such laws (though its authors believed this to be case [FN104]), but only that it does not invalidate local legislation because of the nineteenth century Supreme Court holdings that the Amendment is not incorporated against the states. [FN105] Nonetheless, Gun Crazy parenthetically characterizes Quilici as follows: "finding that a right to possess handguns is not guaranteed by the Second Amendment." [FN106]

In short, although some of the cases Gun Crazy cites do endorse its position, almost all of these cases concern statutes that arguably are constitutional even under the "broad-individual-right" view Gun Crazy denounces. In many of these cases that Gun Crazy claims support its view, the opinions discuss the Second Amendment so summarily that it is impossible to say that they are adopting any position beyond their bare holding that the Amendment does not give felons a right to own firearms. None rejects the evidence and arguments presented by Second Amendment scholars in the recent law review literature. Indeed, most were decided before that literature appeared.

*1163 In the few cases where judges have displayed an awareness of the recent literature, their treatment of the individual right view has tended to depart widely from the pattern Gun Crazy represents to be universal and settled. For instance, Gun Crazy cites a Ninth Circuit case which rejected the individual right view in an opinion preceding the recent literature. [FN107] However, in the 1992 case of Fresno Rifle & Pistol Club v. Van de Kamp, [FN108] the court did not reaffirm the militia-centric theory. Instead, after being presented with articles by both Sanford Levinson and David Williams, it rejected the plaintiff's Second Amendment claim on the ground that the Amendment applied only against the federal government (citing the preincorporation doctrine cases of Cruikshank and Presser) and not, as it had previously held, because the Second Amendment protects only a collective right. [FN109] Nevertheless, in a later opinion in which it was not presented with the law review literature, the Ninth Circuit rejected the individual right view. [FN110]

Gun Crazy also overlooks the concurring opinion in one Eighth Circuit case it cites, which accepts the individual right view and explicitly rejects five of the earlier opinions Gun Crazy cites. [FN111] Gun Crazy cites no Fifth Circuit case supporting its view and, once again, fails to disclose that a recent Fifth Circuit opinion, citing Sanford Levinson's article, suggests in dictum that the Fifth Circuit would reject Gun Crazy's "narrow" militia-centric position. [FN112]

*1164 Most importantly, the principal problem with the lower federal court decisions that Gun Crazy correctly cites as refusing to enforce the Second Amendment is that they all derive from a questionable interpretation of Miller and only Miller. Thus, "the vast caselaw" [FN113] that Gun Crazy touts so hyperbolically has greatly reduced, if any, weight if it turns out that it misconstrues or departs from Miller. As to whether the case law does so, we quote one law review treatment by an author whom Gun Crazy appears to hold in high esteem. [FN114]

At a minimum, then, Miller limits the scope of the Amendment to arms suitable for use by militia.

Lower courts have suggested that Miller limits the right even further. If the Amendment's purpose is only to assure the continuation and render possible the "effectiveness" of the militia, then it may protect state governments against federal tampering with their militia, but it does not guarantee individuals any rights at all. Some of Miller's language, however, is in tension with such a reading. In the eighteenth century, the Court explained, the militia comprised all males physically capable of acting in concert for the common defense, and "when called for service these men were expected to appear bearing arms supplied by themselves." In other words, the Court strongly suggested that the Amendment guarantees a private right to own guns, at least by all males of arms-bearing age, so as to be ready for militia service. [FN115]

Can this group of sketchy opinions be considered a judicial consensus so dispositive of the issue that no scholar can honestly address the Amendment without both mentioning this consensus and conceding that it is dispositive? Does the refusal of such scholars as William Van Alstyne, Akhil Amar, Charles Cantrell, Robert Cottrol, Sanford Levinson, Nelson Lund, Nicholas Johnson, and James Whisker, [FN116] to genuflect before these cases make them part of "the gun lobby's well-orchestrated propaganda campaign to drown out the judiciary's voice."? [FN117]

*1165 3. Second Amendment Scholars Have Not Ignored Judicial Opinions

Even were this judicial record considered to be a consensus that no responsible scholar could ignore, it is important to note that some of the professors Gun Crazy assaults have not ignored the case law addressing the Second Amendment. Professors Cottrol and Diamond, Lund, and Van Alstyne each discuss it, though they concur in dismissing the case law as "scanty and utterly undeveloped," [FN118] an "arrested jurisprudence," [FN119] "intellectually untenable," [FN120] "no useful body of law," [FN121] and no "meaningful case law or jurisprudence." [FN122] As for Professor Johnson, although Gun Crazy taxes him with not having cited relevant Second Amendment case law, his article instead posits a right to gun ownership under the Ninth Amendment rather than the Second, [FN123] as Gun Crazy acknowledges. [FN124]

Nor are those whom Gun Crazy traduces as exhibiting "pro-gun lobby bias" alone in making such judgments. David C. Williams, whose academic integrity is not questioned by Gun Crazy, [FN125] treats these vaunted lower federal cases in the same perfunctory way for which Gun Crazy excoriates Cottrol and Van Alstyne. [FN126] Observing that the case law provides a &quo