Robert J. Spitzer, “Distinguished Service Professor” of Political Science, seems rather displeased with recent Supreme Court jurisprudence regarding the Second Amendment. The day after the Supreme Court handed down the McDonald decision in June, he had this to say in the Huffington Post, about the court’s decision to incorporate the Second Amendment:
As the piecemeal incorporation process suggested, not all Bill of Rights protections were equally important. No one was beating down the doors of judicial chambers to incorporate the Third Amendment’s protection against the quartering of troops in people’s homes in peacetime, or the Seventh Amendment’s right to common law suits “where the value in controversy shall exceed twenty dollars,” or, for that matter, the Second Amendment’s militia-based right to keep and bear arms — a right rendered obsolete with the decline of old-style militia system.
Right from the beginning, he stakes out his opposition to the idea of a Constitutional guarantee of an individual right to keep and bear arms, with his “militia-based” qualifier–and then he declares the right “obsolete.” And he’s just getting started:
But the calculus changed for the Second Amendment in 2008, when the Supreme Court, for the first time in history, ruled that the amendment protected an individual right of civilians to own handguns for the purpose of personal self-protection in the home. The court’s D.C. v. Heller decision was notable not only for rejecting its own past precedents, but for creating a new right built on what most historians considered a suspect reading of the amendment’s history.
That “creating a new right” link takes us to another of his articles, “Heller’s Manufactured Gun Rights Can Be Traced to a Flawed Law Review Article.” In it, he makes the startling assertion that the idea of the Second Amendment protecting an individual right to own firearms had never been seriously discussed until 1960, when it appeared in an article written by a law student:
Where, then, did this interpretation come from?
The answer is a law journal article published in 1960 in the William and Mary Law Review (2), written by a student member of the review’s editorial board (and life NRA member) where, for the first time, an article in a serious publication offered two new arguments: that the Second Amendment protected an individual right to bear arms for personal self-defense (ignoring, as did Scalia’s decision, the common-law tradition enshrining self-defense rights), and that the amendment created a citizen “right of revolution,” a right which, according to the author (but not, thankfully, in Heller), was lawfully exercised by the South during the Civil War.
That’s a . . . remarkable argument, Professor–but the applicable remarks might not be particularly polite. Spitzer is apparently saying that the individual right interpretation of the Second Amendment–the “Standard Model,” in other words, is the 1960 invention of a law student (and “life NRA member”).
Ever hear of William Rawle, Professor? Does this passage from his book, View of the Constitution (published in 1829), sound familiar?
No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.
How about Senator Jacob Howard (R-MI), one of the drafters of the Fourteenth Amendment, who, in arguing for that amendment’s ratification, made clear both his belief that the Fourteenth Amendment would “incorporate” the Second Amendment, and that the right protected by the Second Amendment applied to individuals?
To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guaranteed by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms . . .
One wonders what it takes to become a “Distinguished Service Professor.”
- Federal court says self-defense ban by states is Constitutional
- Self-defense, the UN, and the 2nd Amendment
- More about incorporation