REVIEW Second to None? BY SANFORD LEVINSON The Second Amendment in Law and History Carl T Bogus, ed. The New Press 368 pages, $30. How should we understand the famous \(and mysteriConstitution’s Second Amendment that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed”? For decades, most legal scholars and judges treated the amendment as something of an unwanted stepchild, disregarding the “right” it sets forth as a potential menace to gun control. In recent years, however, a number of mainstream and politically liberal legal scholars \(including, I shOuld note, myself, in addition to Akhil Reed Amar of the Yale Law School, Duke Law School Professor William Van Alstyne, and, probably most significantoffered “revisionist” readings of the Athendment. This revisionism consists in effect of taking seriously some of the arguments linked with the National Rifle Association, which emphasize an individual “right to bear arms.”Whereas opponents of the NRA emphasize a socalled “collective” interpretation by which the right protected by the Amendment is that of a state to organiie a state militia \(leaving both national and state governments free to limit indeed, to prohibitthe possession of arms by anyone not in an organized would say that such an interpretation misreads the term “militia” and too quickly dismisses the amendM i ent’s second clause. In guaranteeing a right of “the people,” we have argued, the amendment refers not to a state but to the citizenry. The Second Amendment in Law and History is a somewhat shortened version of a symposium published in the Chicago-Kent Law Review, whose purpose is quite forthrightly to criticize ments of the revisionists, who are, however, absent except as described by their decidedly unsympathetic critics. The organizers of the symposium made no effort to bring the revisionists and their critics face to face. To fully understand the arguments of the revisionists, one will have to look elsewhere, such as a 1994 volume edited by Robert J. Cottrol, Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Still, this symposium offers worthy examinations of various legal and historical arguments surrounding the Second Amendment, even if it is by no means the last word on the subject. Fully half of the 10 essays \(and considerably more than half of the 345 18th-century English and American history and maintain that a correct understanding of that history disproves the revisionists’ arguments. One might, though, believe that the historical debates, for all of their intrinsic interest, have little practical importance. Thus an excellent essay by Minnesota law professor Daniel Farber, “Disarmed by Time: The Second Amendment and the Failure of Originalism,” argues, altogether correctly I believe, that the present meaning of the’ Second Amendment, whatever it might be, ought not in the least be determined by what it probably meant in 1789. According to Farber, “originalism,” the view that the Constitution’s meaning is best understood by reference to past understandings, is in fact a bankrupt theory of constitutional interpretation. Columbia law professor Michael Dorf would certainly agree, and his concluding essay, “What Does the Second Amendment Mean Today?” reviews a plethora of contemporary judicial opinions that cut against the revisionist, “individualist” interpretation of the Amendment and in favor of the far more limited “collectivist” one. There is certainly insufficient space to examine here all of the arguments raised by these scholars. I personally found the richest article to be that by historians H. Richard Uviller and William G. Merkel, which examines at length the complexities of so-called “civic-republican” political ideology, derived in part from the thought of Machiavelli and English 14 THE TEXAS OBSERVER 1/18/02
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