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[Copyright (c) 1996 Emory Law Journal, Fall, Vol. 45:4, 1139-1259.
Permission for WWW use generously granted by Emory Law Journal (www.law.emory.edu/ELJ/eljhome.htm) and the authors. Electronic copy for educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

UNDER FIRE: THE NEW CONSENSUS
ON THE SECOND AMENDMENT

Randy E. Barnett [*]
Don B. Kates [**]

Table of Contents

Introduction: Reacting to the New Scholarly Consensus

Until the early 1980s the Second Amendment had received little attention or interest from legal scholars. [1] In 1981 Northwestern University law professor Daniel D. Polsby ridiculed the individual rights view of the Amendment as "a lot of horsedung." [2] 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. [3]

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. [4]

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. [5] The only authority they cited supporting their view was a quotation from an article by former Chief Justice Burger in Parade magazine. [6] 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, [7] 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." [8]

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 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," [9] "leading gun-rights litigators and lobbyists," [10] and "warhorses." [11] 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. [12]

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. [13] Based on the criteria it selects, post-1972 law review articles by law professors, Gun Crazy and just one other law review article deny the broad individual right view. [14] Several more law professor-authored articles catalog positions taken by each side without themselves supporting either, [15] and there is also student work on both sides. [16] 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. [17]

Gun Crazy suggests that "one's scholarly views of the Amendment are determined primarily by one's position on gun control." [18] 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. [19]

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. [20]

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. [21]

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. [22]

Gun Crazy describes itself as "an Article about . . . deceit, misperception, and dereliction of responsibility . . . ." [23] As we shall show in this Part and in 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" [24] 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." [25] 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), [26] 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. [27]

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. [28]

the gun lobby's dishonest manipulation of constitutional meaning [29]

Second Amendment deception [30]

Fabricated Meanings of the Second Amendment [31]

the constitutional fish story told by the gun lobby [32]

a monumental myth [33]

a constitutional deception [34]

phantom constitutional barriers [35]

misinformation campaign [36]

Second Amendment sleight-of-hand [37]

the gun lobby's constitutional distortion [38]

the gun lobby's Second Amendment misrepresentation [39]

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" [40] to gun control, they participate in duping gullible legal scholars and the general public into accepting "the gun lobby's well-orchestrated propaganda campaign"; [41] they know the truth, but deny it in "dereliction of [their] dialogical responsibility" [42] as scholars to "speak the 'truth'"; [43] they are in the forefront of the "rabidly vocal minority" [44] being "effectively mobilized" [45] by the NRA "to drown out and shout down virtually all other voices in the constitutional conversation." [46] 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 to a reporter that "[t]he majority of these articles could have been spewed out of the N.R.A.'s word processor." [47]

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" [48]) what Gun Crazy repeatedly misdescribes as fifty years of unanimous federal court rejection of the individual right view of the Amendment. [49] "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." [50]

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. [51] 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 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," [52] 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," [53] "clear" [54] and "striking judicial consensus" [55] 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, [56] 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 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. [57]

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. [58]

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" [59] 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. [60] 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 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" [61] 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." [62] 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 [63] 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." [64] 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. [65] Moreover, 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. [66]

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; [67] 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? [68] 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" [69] be engaging in "dereliction"--a term that Gun Crazy uses twelve times--of their responsibility as scholars? [70]

Gun Crazy also discusses two nineteenth century Supreme Court cases, United States v. Cruikshank, [71] and Presser v. Illinois. [72] 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, [73] 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." [74] 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." [75]

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. [76] 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. [77] This 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 [78] 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. [79] 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). [80]

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 right to arms applies to "the people" for all purposes, or only in connection with militia service. [81]

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. [82] 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." [83] Like the Founders and the nineteenth century commentators we discuss below, [84] 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. [85] And contrary to the militia-centric thesis advocated in Gun Crazy, Taney's opinion assumed that all white citizens then enjoyed the guarantee of an individual right "to keep and carry arms wherever they went" [86] 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. [87]

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. [88] 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 [89] 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." [90] 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 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. [91]

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. [92]

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.

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" [93] 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." [94] 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. [95] 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. [96] 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 [97] and to those who, in Gun Crazy's view, "share the extreme views of the NRA." [98]

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 bans upheld in Quilici and Farmer, respectively." [99] Farmer v. Higgins, [100] 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. [101] 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." [102]

In Quilici v. Village of Morton Grove, [103] 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 [104]), 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. [105] Nonetheless, Gun Crazy parenthetically characterizes Quilici as follows: "finding that a right to possess handguns is not guaranteed by the Second Amendment." [106]

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.

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. [107] However, in the 1992 case of Fresno Rifle & Pistol Club v. Van de Kamp, [108] 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. [109] Nevertheless, in a later opinion in which it was not presented with the law review literature, the Ninth Circuit rejected the individual right view. [110]

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. [111] 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. [112]

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" [113] 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. [114]

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. [115]

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, [116] to genuflect before these cases make them part of "the gun lobby's well-orchestrated propaganda campaign to drown out the judiciary's voice."? [117]

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," [118] an "arrested jurisprudence," [119] "intellectually untenable," [120] "no useful body of law," [121] and no "meaningful case law or jurisprudence." [122] 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, [123] as Gun Crazy acknowledges. [124]

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, [125] treats these vaunted lower federal cases in the same perfunctory way for which Gun Crazy excoriates Cottrol and Van Alstyne. [126] Observing that the case law provides a "dearth of judicial instruction," [127] Professor Williams cites a couple of the lower federal cases as representative of the whole, and dismisses them as dubious and in conflict with the Supreme Court precedent they purported to be following. [128]

Nevertheless, when Van Alstyne and Cottrol offer the same view of this case law, Gun Crazy responds with a new contortion of its charge of deceit. Whereas Amar, Levinson, and others who ignore the case law (deeming it not worth discussing) are guilty of deceit for not discussing it, Van Alstyne and Cottrol who expressly dismiss the case law are deceitful in failing to acknowledge (what Gun Crazy deems) its full importance:

Van Alstyne discusses only the scant Supreme Court case law, ignoring the many state and lower federal court decisions of the last fifty-five years. [129]

All of [Cottrol's writings on the Second Amendment] display a similar disinclination to acknowledge fully judicial or scholarly views contrary to the gun lobby's party line. [130]

It is on the basis of this type of hair-splitting that Gun Crazy disparages the integrity of these prominent constitutional theorists. The leitmotif running throughout Gun Crazy is that no scholar can honestly disagree with its view of the right to arms. From that premise it follows that Akhil Amar, Sanford Levinson, William Van Alstyne and others who disagree with Gun Crazy must be stooges parroting "the gun lobby's Second Amendment misrepresentation." [131] We submit that reading these scholars' analyses will leave quite a different impression. Indeed, University of Chicago law professor Cass Sunstein, an observer whom no person could suspect of association with the gun lobby, comments that Amar, Levinson et al. have made the argument for a broad individual right view of the Amendment intellectually respectable. [132] We must concede, however, that anyone who thinks Akhil Amar and Sanford Levinson minions of the gun lobby will probably think the same of Cass Sunstein. [133]

4. A Bizarre Theory of Constitutional Meaning

In vilifying Second Amendment Scholars for failing to acknowledge or accord adequate weight to the opinions of courts, Gun Crazy advances, in several places, a highly idiosyncratic theory of constitutional meaning:

Dishonesty also dominates the gun lobby's discussion of the judiciary's read on the Second Amendment. Gun-rights advocates argue not only that the Second Amendment should provide a broad, nearly absolute individual right to bear firearms, but that the Amendment does in fact guarantee all individuals a personal "right to bear arms" for all legal, private purposes. [134]

. . . .

The gun-rights advocates' portrayal of the Second Amendment as conferring a broad individual right is a monumental myth. It is a libertarian pipe dream. It is a constitutional deception designed to further a political agenda. It is an argument about what the Second Amendment should guarantee--not a reflection of what it does guarantee in any legally meaningful sense. [135]

. . . .

Although it is perfectly natural and acceptable for pro-gun-rights elected officials, media commentators, and scholars to argue that the Second Amendment should be read to protect all private firearms ownership, a dereliction of dialogic responsibility occurs when they claim that the Second Amendment does provide broad constitutional cover for gun owners. [136]

Indeed, this claim lies at the very heart of Gun Crazy's charge that Second Amendment scholars have acted deceptively. But what does this claim mean?

The legal positivist view of law that distinguishes between describing what a law is and what it should be is commonplace, and perhaps that is what Gun Crazy thinks it is adopting. But this distinction does not apply, at least not easily, to a claim about what the Constitution means. A claim of constitutional meaning is normally spoken of the way we speak of facts: as either true or false, correct or incorrect, probable or improbable, etc. Whether the positive law agrees with that claim is another matter, but the fact that, at a particular moment, positive law may disagree with a claimed constitutional meaning does not in any way serve to refute or undermine that meaning. [137]

Anyone who reads the Constitution is entitled to render an opinion on what it truly, correctly, or probably means--what it really does mean, not "should" mean--and to support that claim with arguments and evidence. Second Amendment scholars have done exactly that. They have not, or at least not always, claimed that their interpretation has been accepted by courts and is therefore "positive law." True, some treatments of judicial opinions by Second Amendment scholars have attempted to show that judicial precedent is not clearly in conflict with their interpretation, or is generally supportive of it, and in this sense have claimed that their individual right interpretation is supported by positive law. But whether those Second Amendment scholars who make this argument are correct, they are clearly not guilty of ignoring the case law.

Gun Crazy appears to be adopting as its interpretive methodology the legal-realist-era aphorism that "the Constitution means what the Supreme Court (and lower federal courts) says it means." But this aphorism was never meant to be taken literally as a claim about meaning; it was simply a poetic statement of the proposition that the Supreme Court has the last word as a matter of positive law.

Let us put the matter another way: A lawyer representing a client might be acting unethically if she represents to a court that the positive law concerning the meaning of the Second Amendment is X when it really is Y. And a lawyer might be acting irresponsibly if she recommends that a client bring a lawsuit on the basis of what she thinks the Second Amendment really means without telling the client that this interpretation had consistently been rejected by the courts.

A lawyer is doing nothing unethical, however, by urging a court to adopt what she believes in good faith to be a correct interpretation of the Second Amendment, even though it is a meaning that courts had in the past consistently rejected. When a lawyer makes such an argument she is not arguing what the Second Amendment should mean (whatever that means), but what the Second Amendment does mean. [138] Indeed, that is the reason she is giving for why the court should change its mind: because it has been wrong about what the Constitution does mean. Note that this is precisely the distinction on which Rule 11 of the Federal Rules of Civil Procedure turns, in providing that a lawyer cannot be sanctioned for arguing for law reform or change.

This is all Second Amendment scholars have ever argued with respect to the meaning of the Second Amendment: that courts, law teachers, and others are wrong about what the Constitution does mean, not what it should mean. And, when making such a claim, there is no ethical imperative to discuss the fact that some or even all courts have disagreed. In charging others with scholarly deception for arguing what the Second Amendment does mean in the face of disagreement by the courts--and this is its principal charge--Gun Crazy manifests a serious intellectual confusion.

B. Other Supposed Scholarly Deceptions

Gun Crazy's accusations of willful duplicity by Second Amendment scholars are not limited to the charge of concealing an alleged judicial consensus. In perhaps the most scurrilous section of the article, Gun Crazy singles out three authors for special attention as examples of legal scholars who fail to speak the truth: William Van Alstyne, Sanford Levinson, and Robert Cottrol. [139] We consider the charges against each in turn.

1. William Van Alstyne

Gun Crazy discusses Duke University Professor William Van Alstyne in a section entitled "Legal Scholars' Dereliction of Responsibility--Failure to Speak the Truth." [140] According to Gun Crazy, Van Alstyne "trots out a misleadingly edited version" of a quote from The Federalist. Gun Crazy charges that these quotes represent "standard NRA editing." [141]

Here is Van Alstyne's reference to The Federalist, No. 46:

Madison contrasted the "advantage . . . the American people possess" (under the proposed Constitution) with the circumstances in "several kingdoms of Europe . . . [where] the governments are afraid to trust the people with arms." [142]

Here is the passage in full (with the passages excerpted by Van Alstyne emphasized):

Besides the advantage of being armed, which the American people possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. [143]

Now here is the problem with this editing according to Gun Crazy:

This passage discusses two different barriers against tyranny: a militia and an armed populace. The Second Amendment, by its introductory clause, is designed to preserve the militia. Indeed, Madison's words strongly suggest that the first barrier, the "advantage" of an armed populace, is one already possessed at the time of the Constitution, as a consequence of the frontier nature of American society, and as compared against the more established nations of Europe. In any event, Van Alstyne's editing, which is standard NRA editing, conveniently combines two sentences into one, making the passage far stronger support than it is objectively. [144]

To the extent that this criticism is intelligible, Gun Crazy appears to be saying that (1) Madison sees two differences, not one, between America and Europe: an armed population and the existence of a militia; [145] (2) the Second Amendment applies only to the militia; and therefore (3) it is misleading to edit this quote to suggest that the advantage of an armed population, an advantage possessed at the time the original Constitution was ratified and before the Second Amendment was even proposed, is protected by the Second Amendment.

This is a pure non sequitur which assumes in step (2) what it purports to show: that the Second Amendment does not protect the barrier against tyranny provided by "the advantage of being armed" because it was intended only to protect the militia. But apart from being illogical, it is "a bit silly." [146] Madison is claiming that all three of the barriers he listed would be protected, not by the Second Amendment, which had yet to be formulated, but by the proposed Constitution (which is exactly what Van Alstyne quotes him as saying). Moreover, all three barriers already existed at the time of the Constitution, which merely preserves them, though each in a different way. The right to keep and bear arms is protected--just as all the rights retained by the people are protected by the unamended Constitution--by the fact that the Constitution gives the federal government no power to dispossess the people of their preexisting natural rights. Thus, when the Constitution was criticized for being inadequate because it lacked a Bill of Rights to protect, among other rights, the freedom of the press, Hamilton gave his famous reply: "[W]hy declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restriction may be imposed?" [147]

According to this argument, the right to keep and bear arms could not be restrained by the federal government at the time of the Constitution's ratification because "no power is given by which restriction may be imposed." Those provisions in the Bill of Rights which expressly protected natural rights retained by the people [148] were included, in Madison's words, "for greater caution." [149] They added nothing new to the original Constitution. [150] Thus the fact that the American people "already possessed" the "advantage of being armed" at the time of the Constitution is support for the proposition that the Second Amendment was intended to protect their right to continued possession of arms.

Herz is apparently unaware of the elementary proposition [151] that "the Framers of the Bill of Rights did not purport to 'create' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing." [152] One of the other rights included in the Bill of Rights which Madison thought was one of the "preexistent rights of nature" [153] was freedom of speech. [154]

The fact that Madison and his colleagues believed individuals had a natural right both to freedom of speech and to possess arms for self-defense is crucial evidence that they meant exactly what they said in guaranteeing "the right of the people to keep and bear arms." Thus, insofar as Gun Crazy's interpretation of the meaning of the quotation has any force, it is to support the individual right interpretation of the Amendment, the interpretation that Van Alstyne was supposedly bowdlerizing the quotation to buttress.

In any event, Van Alstyne's edited quote accurately depicts the relevant part of what Madison thought differentiated America from Europe, while excluding the irrelevant parts. It is both characteristic and disturbing that Gun Crazy charges Van Alstyne with adopting "standard NRA editing" [155] without providing any example of NRA materials using the same editing. But even had Herz provided such an example, this would only bolster the credibility of NRA editing.

2. Robert Cottrol and Raymond Diamond

Professor Robert Cottrol of George Washington University has edited a three-volume text on the Second Amendment and has authored or co-authored articles on it which appear, inter alia, in the Oxford Companion to the Supreme Court, [156] and the Yale [157] and Georgetown Law Journals. [158] Gun Crazy charges that, like the others, he and his frequent co-author, Tulane University law professor Raymond Diamond, "display a . . . disinclination to acknowledge fully judicial or scholarly views contrary to the gun lobby's party line." [159]

We have responded to the supposed omission of judicial opinions above. [160] As for their alleged failure to "acknowledge fully" contrary scholarship, anyone reviewing Cottrol's three-volume documentary history of the Second Amendment will find that he reprints seven law review or other articles opposing the individual right view--including all the articles on which Gun Crazy itself principally relies. [161]

Gun Crazy does not inform readers of Cottrol's three-volume work, referring instead only to the highly compressed one-volume paperback. It complains that this edition includes "only three essays out of ten offering positions contrary to the broad-individual-right view." [162] To a less jaundiced observer, including three out of ten articles is not even remotely to be characterized as hiding from the reader the existence of contrary views, in derogation of one's scholarly responsibilities.

Gun Crazy asserts that Professors Cottrol and Diamond "rely on standard gun-lobby materials." [163] As with Van Alstyne, no examples of this alleged reliance are provided, and, insofar as this criticism is intelligible, it is false. Cottrol and Diamond's historical exegeses have depended entirely on standard historical evidence, [164] not "standard gun-lobby materials"--an imprecation Gun Crazy fails to reference in any way that would explain or define it.

To these charges, Gun Crazy adds an accusation that is particularly noxious. It invokes the specter of racial paranoia (not to mention obsequiousness), when it asserts that "they elaborate the long-standing NRA theme that 'gun control is a white plot to disarm a feared minority population.'" [165] Gun Crazy is quoting here, not anything said or written by Cottrol and Diamond, but a characterization borrowed with approval from Josh Sugarmann, whom Gun Crazy fails to identify as former Communications Director of the National Coalition to Ban Handguns, and the founder and present Executive Director of an anti-gun organization called the Violence Policy Center. No textual support for this demeaning characterization is provided. [166]

The racial implications and intent of many gun control proposals are, however, no myth invented by the NRA. On the contrary, they were recognized by historians and policy analysts, including at least one strong gun control advocate, long before Cottrol and Diamond's admittedly much deeper exploration of the issue. [167] And Herz himself concedes that "there is indeed some historical merit to this argument." [168] What then is his complaint about Cottrol and Diamond's scholarly thesis? That "the position makes little sense today in light of the tremendous and disproportionate toll that gun violence takes on the African-American community." [169] In Part IV, we take up the dubious criminological claims made by Herz, but suffice it to say that this claim in no way supports his charge that Cottrol and Diamond subscribe to some white conspiracy theory, nor that they are appropriately treated in a section entitled, "Legal Scholars' Dereliction of Responsibility--Failure to Speak the Truth." [170]

3. Sanford Levinson

Gun Crazy reserves much of its vituperation for University of Texas law professor Sanford Levinson. It charges him with "relying on the usual secondary materials that the NRA finds so appealing" [171] and describes him as an "ostensibly nonpartisan legal scholar[]" [172] implying that he is not. Gun Crazy asserts that:

Levinson provides a cursory overview of the Second Amendment text and surrounding history, relying on the usual secondary materials that the NRA finds so appealing, including The Federalist No. 46 and nineteenth-century constitutional commentary from Justice Joseph Story and Thomas Cooley. Like the gun lobby, Levinson strips these materials of important context, advancing the ball "by manipulating his supporting material so as to exclude that which would cast doubt on the existence of a broad individual right." [173]

It will be unnecessary to tediously discuss the details of the quotations from The Federalist, Story, Cooley, and others that Levinson is accused of bowdlerizing because Gun Crazy provide no details for its charge whatever. Instead, like its reliance on Sugarmann's characterization of Diamond and Cottrol's work, Gun Crazy once again incorporates by reference the claims of an employee of an anti-gun group--this time an article by Dennis Henigan (whom Herz once again fails to identify as the Chief Staff Lawyer for the Legal Action Project of the Center to Prevent Handgun Violence). [174]

What the charges boil down to is that Gun Crazy and Henigan disagree with Levinson (and Van Alstyne) as to the meaning of some quotations from Joseph Story's Commentaries, James Madison in The Federalist, and other Founders. Levinson and Van Alstyne interpret these quotes as showing belief in an individually armed citizenry, while Henigan claims that, in context, they prove only belief in the militia as an antidote to a standing army.

It would perhaps suffice to point out that Gun Crazy and Henigan stand alone in their interpretation of the quotations they claim have been "strip[ped] of their important context" and "manipulated." [175] We believe all the other scholars who address these quotations have interpreted them as supporting the individual right view. [176] Nevertheless, because the matter is important to establish that Gun Crazy has done Levinson a grave injustice by repeating Henigan's accusations, we feel compelled to summarize the evidence that one of us has elaborated elsewhere. This evidence shows it is Henigan and Herz who take these quotes out of their context in the Founders' general thought and philosophical background. It is clear that the quotations were available to Herz because he criticizes the article in which they are related, [177] yet he ignores them.

(1) James Madison, James Monroe, Fisher Ames, Albert Gallatin, and others mentioned the right to arms in the same breath with freedom of religion and press, and described them all and interchangeably as "human rights," "private rights," "essential and sacred rights" which "each individual reserves to himself." [178]

(2) A Federalist commentary endorsed by James Madison, that was before Congress when it enacted the Bill of Rights and that described the Amendment as confirming citizens "in their right to keep and bear their private arms." [179]

(3) Anti-Federalist editorials which hailed the Amendment as assuring that "the said constitution be never construed" to infringe rights of free expression or "to prevent the people of the United States who are peaceable citizens, from keeping their own arms." [180]

(4) Thomas Jefferson's proposal in a model state constitution for a guarantee that "No free man shall be debarred the use of arms within his own lands or tenements." [181]

(5) Joseph Story's explanation of the Second Amendment in terms of what was in his day regarded as a truism, an axiom of republican liberalism: "One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms . . . ." [182]

These specific quotations lead us to the broader context in which Levinson and Van Alstyne (and many other historians and scholars) understand the quotations that Henigan and Gun Crazy question. That broader context is the general attitude of the Founders toward the role of arms in society--an attitude so reverential that one intellectual historian has described it as "almost religious." [183]

Neither Herz, Henigan, nor any other exponent of their position deals with that attitude because it is so repugnant to their own. Nevertheless, the Amendment can only be understood in light of that attitude, which involved a set of related propositions that were deemed axiomatic truths in the allied systems of natural rights and civic republicanism the Founders embraced:

(1) The right of personal self-defense is inalienable, being the cardinal natural right; [184]

(2) A concomitantly inalienable element of the right of self-defense is the right to possess personal arms for defense of self, home, and family; [185]

(3) Derivative of the individual right of self-defense is the right of individuals to join together for collective defense; [186]

(4) The right of self-defense exists against murder, rape, robbery, and other crimes, whether perpetrated by apolitical criminals or for political purposes by a tyrant or his thugs ("a wicked Magistrate" and his crew of "lewd Villains"); [187]

(5) The individual right of self-defense gives rise, in the ultimate extreme, to the right to overthrow tyrants and return government to its proper course; [188]

(6) The existence of an armed populace will generally avert the necessity of actual resistance, much less revolution, by deterring government and rulers from their inherent tendency to tyrannize and oppress; [189]

(7) Finally, the Founders believed "that the perpetuation of a republican spirit and character within [a free] society depended upon the freeman's possession of arms as well as his ability and willingness to defend both himself and his society." [190]

C. Impugning the Integrity of Second Amendment Scholars

Gun Crazy has only one explanation for its charge that the scholarly consensus that the Second Amendment protects a broad individual right is a product of deception and a failure to speak the truth: Second Amendment scholars who have ignored judicial opinions and distorted historical facts are biased either because they are institutionally connected to pro-gun rights lobbying organizations or they are personally enamored with guns. In this section, we examine the evidence that Gun Crazy advances for this most serious accusation.

1. Are You Now, or Have You Ever Been, a Member of Academics for the Second Amendment?

Earlier in this Article we described Gun Crazy's method as McCarthyite. [191] We now substantiate this characterization. Gun Crazy explicitly charges that Second Amendment scholars reach the conclusions they do as a result of a nefarious conspiracy by the "gun lobby":

This Article contends that the prevailing Second Amendment deception represents an especially severe threat to rational policymaking in a representative democracy. An economically self-interested, single-issue pressure group has effectively mobilized a rabidly vocal minority to drown out and shout down virtually all other voices in the constitutional conversation. [192]

. . . .

Not content to rely solely on its own lawyers and activists, the gun lobby is also working hard to flood the law reviews with friendly scholarship from sympathetic law professors [footnote 357] and promising law students. [193]

Footnote 357 states: "In 1993 the gun lobby organized a sympathetic scholars' group, known as Academics for the Second Amendment." [194] Later Gun Crazy adds: "AFSA is headed by NRA Executive Board member Joseph Olson, a professor at Hamline University School of Law. The group was lauded in the December 1993 issue of the NRA's American Rifleman." [195] It then connects this group with Second Amendment scholars: "Of the nine full-time law professors who have offered endorsements of the broad-individual-right position via law review articles, seven are members of the anti-gun-control group Academics for the Second Amendment (AFSA)." [196] The seven professors identified as "members of the anti-gun-control group" are law professors Ahkil Amar, Charles Cantrell, Robert Cottrol, Raymond Diamond, Nicholas Johnson, Sanford Levinson, Nelson Lund, and political scientist James B. Whisker.

Gun Crazy's one, and only one, piece of evidence in support of this accusation is the fact that these professors signed a single advertisement published by Academics for the Second Amendment:

As of March 13, 1993, Professors Amar, Cantrell, Cottrol, Diamond, Johnson, Levinson, and Lund were all AFSA members, as was political science Professor Whisker. Academics for the Second Amendment, An Open Letter on the Second Amendment, Nat'l Rev., Mar. 15, 1993, at 23, 23. The group also published the Open Letter on the same date in the New Republic and the National Law Journal. [197]

This is one of the bases on which Herz accuses Sanford Levinson of lying when he claims in his article to have previously supported bans on gun possession. [198] "But Levinson's claim in this essay, that he supports 'prohibitory [firearms] regulation' is hard to swallow. He is a member of the anti-gun-control group, Academics for the Second Amendment . . . ." [199]

Their alleged "gun-lobby group" membership also enables Gun Crazy to ignore the articles by professors Amar, Cantrell, Johnson, Lund, and Whisker, dismissing them all with one sentence parentheticals in a single footnote. For example, Gun Crazy dispatches Yale Law School professor Akhil Amar's two articles [200] touching on the Amendment in the following parenthetical: "rejecting the 'states' rights' view of Second Amendment on originalist grounds, with no discussion of contrary case law." [201]

The group membership charge is entirely false. It rests solely on the fact that professors Amar, Cantrell, Johnson, Levinson, Lund, and Whisker let their names be included in an advertisement endorsed by seventy political philosophers, political scientists, law professors, and historians that was sponsored by Academics for the Second Amendment (A2A). Moreover, Gun Crazy offers no evidence to show that any of the articles it traduces was written at the behest of the A2A group. Indeed, it is clear from the facts Gun Crazy itself offers that its author must have been aware of the falsity of his charges. All but one article he cites appeared before 1993, when Gun Crazy alleges A2A came into existence. [202] The articles Gun Crazy seeks to portray as A2A-sponsored or promoted date back to 1975. Gun Crazy does not offer any evidence or reference for its suggestion that Academics for the Second Amendment has sponsored or promoted any post-1993 law review article.

Gun Crazy's charges against distinguished scholars would be comic but for its publication in a respectable law review. Akhil Amar and Sanford Levinson are major figures in constitutional law whose character and opinions are wildly at variance with claims that they are members of "the gun lobby" or consciously deceitful propagandists for it or any other organization. [203] The nature of these charges, their inconsistency with the known character and opinion of the victims, and the emphasis Gun Crazy places on them, required its author to have taken steps to positively verify them. Even a slight attempt to do so would instead have discredited these charges.

Had Professors Levinson and Amar been contacted before Gun Crazy was published, Herz would have been informed that both dislike guns, have never owned one and have no desire to do so; neither has ever been even a member of the NRA or A2A, much less a leader or paid employee thereof; neither has ever litigated a gun case (for pay or pro bono), much less been "gun rights litigators and activists." On the contrary, they are supporters of gun control, although they were more supportive before they began researching the Second Amendment than they are now. [204]

Had Herz contacted Professor Amar, he would have been told that Amar began work on his bicentennial article on the Bill of Rights with a preconception of the Second Amendment as states' right rather than individual right. [205] It is only because he found that the text and legislative history admit of no other view that Professor Amar was driven to conclude:

The ultimate right to keep and bear arms belongs to "the people," not the "states." As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means "states," it says so. Thus, . . . "the people" at the core of the Second Amendment are the same "people" at the heart of the Preamble and the First Amendment, namely Citizens. . . . Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but . . . [i]n 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms. . . . [T]he "militia" is identical to "the people" in the core sense described above. [206]

Assuming Herz felt some reticence about checking his claims with Amar and Levinson, the fact that they are not A2A members could have been ascertained by asking A2A's president (correctly identified in Gun Crazy as Hamline University law professor Joseph Olson) whether they were. It is noteworthy that Herz did call Olson for information. But Herz failed to ask him whether the professors who Gun Crazy falsely claims are A2A members really do have that status. [207] Instead of asking them or Professor Olson, Gun Crazy charged the law professors with A2A membership based solely on the fact that they endorsed a statement summarizing their views on the Second Amendment, which A2A published in 1993.

Then there is Gun Crazy's treatment of Professor Van Alstyne. Gun Crazy discusses Van Alstyne in the same section that discusses Sanford Levinson, Akhil Amar, et al., a section that is expressly devoted to law professors who allegedly champion the Amendment mendaciously and in bad faith because they are members of A2A. Unless readers attend to the footnotes with particular care, they will not catch the fact that Gun Crazy never actually claims Van Alstyne is a member "of the anti-gun control group" as it does of Levinson and Amar. It could not make such a claim because Van Alstyne's name was not included in the A2A advertisement.

Creating this misimpression enables Gun Crazy to finesse the urgent need to offer some plausible motive for someone of Van Alstyne's stature to falsify quotations. To charge one of the major figures in constitutional law with cribbing from NRA materials and trying to hoodwink other scholars into accepting a pro-gun interpretation of the Second Amendment that he knows to be deficient surely requires some plausible motive. It also avoids the need to provide any evidence to support Gun Crazy's characterization of Van Alstyne as a "pro-gun scholar" [208] who "endors[es] . . . the gun lobby's Second Amendment gospel." [209]

If Herz means by this only that any scholar who comes to the individual right conclusion is by definition "pro-gun," the characterization is completely misleading, particularly in a section in which others are accused (falsely) of organizational ties to the gun-rights lobby. Contrast this with its accusation that Levinson has bowdlerized quotations, which Gun Crazy bolsters by accusing Levinson of being an A2A member. Gun Crazy's charge that Van Alstyne also falsifies quotations is similarly bolstered by leaving readers under the misimpression that Van Alstyne is an A2A member--though without actually saying so.

Nevertheless, in Robert Cottrol, Gun Crazy can congratulate itself on having at last actually identified a member, indeed a board member, of A2A: the lone accurate charge of the eight it makes against scholars who have authored law review articles endorsing a broad individual right interpretation of the Amendment. [210] Once again, A2A did not even exist when the Cottrol-Diamond article Gun Crazy criticizes was published. So it is hard to see how it could be part of a conspiracy by "the gun lobby . . . to flood the law reviews with friendly scholarship from sympathetic law professors." [211]

But Gun Crazy's attack on Cottrol goes beyond its unelaborated innuendo that his being an A2A member somehow discredits his (and Diamond's) pre-A2A writings. Gun Crazy alleges that the whole body of Cottrol's work slavishly adheres to the "gun lobby gospel" [212] and deceitfully omits "judicial or scholarly views contrary to the gun lobby party line." [213] Far from being the gun lobby stooge Gun Crazy depicts, however, Cottrol advocates the enactment of gun control laws that pro-gun groups denounce as unconstitutional, including the Brady Bill, plus more extensive controls that pro-gun groups oppose even more bitterly. [214]

Perhaps Gun Crazy misrepresents Cottrol's position as one of pro-gun irredentism to avoid dealing with Cottrol's criticism of the anti-gun irredentism Gun Crazy represents. Cottrol and Diamond stress that the great majority of the public, including most gun owners, accept the need for reasonable gun controls. They argue that the NRA is only able to defeat such legislation because gun owners are driven into its arms by the anti-gun extremism Gun Crazy epitomizes.

Contrast Gun Crazy's misportrayal with what Cottrol and Diamond actually write:

[Polls show o]verwhelming majorities of the American population support the right of individuals to own firearms [but they also want] . . . measures that would keep guns out of the hands of criminals, the mentally unbalanced, and others likely to abuse the right. And it is this public consensus that should be the starting point of a new, more productive debate over the Second Amendment. . . .

. . . The debate should thus focus on ways of developing fair and effective procedures for screening out those who should be prevented from purchasing firearms and how to do so in ways that would not seriously impair the rights the Second Amendment was designed to protect. Whether such procedures should involve waiting periods, registration, background checks, licensing procedures, or combinations of these possibilities should be part of the debate. . . .

Ironically, an acceptance of the individual rights component of the Second Amendment may be necessary for effective gun control measures. The political difficulty in securing effective national screening measures is directly related to the fear on the part of many who value the right to keep and bear arms that such measures are merely way stations on the road to firearms prohibition. That fear has been fed by those who have sought to read the Second Amendment's guarantee out of the Bill of Rights. The recognition that the Constitution does indeed protect the right to keep and bear arms may be the first step in the needed process of fashioning laws that both contribute to public safety and preserve a right long valued in this society. [215]

Given the techniques used by Gun Crazy to discredit the scholars it discusses, it is interesting to note those Second Amendment scholars that Gun Crazy chose not to discuss. In the previous section we quoted a passage from intellectual historian Robert Shalhope that gives the quotations that Van Alstyne and Levinson supposedly bowdlerized the same meaning they do. Shalhope's seminal article on the Second Amendment and the place of an armed citizenry in that philosophy appeared in the faculty-refereed Journal of American History. [216] This piece and a subsequent law review article should have been prime targets for a scathing reply in Gun Crazy because Shalhope too accepts the view Gun Crazy excoriates as a "Second Amendment deception." Shalhope writes:

When James Madison and his colleagues drafted the Bill of Rights, they . . . firmly believed in two distinct principles: (1) Individuals had the right to possess arms to defend themselves and their property; and (2) states retained the right to maintain militias composed of these individually-armed citizens. . . . [In enacting the Bill of Rights] . . . congressmen firmly believed in the right of individual citizens to possess arms. . . . [217]

So it is surprising to find that Gun Crazy provides no discussion whatever of Shalhope's body of uncongenial scholarship. One might dismiss this as an oversight, except that Gun Crazy does cite Shalhope's Journal of American History article at the end of a list of articles given in footnote 12. [218] Moreover, although his article is reprinted in its entirety in the one-volume anthology by Robert Cottrol that Herz claims to have examined, Gun Crazy reveals nothing of Professor Shalhope's substantive analysis. Could this be because he is a non-gunowning intellectual historian who did not sign the A2A letter? Indeed, Shalhope has evinced no interest in the modern gun control debate at all. The subject of his research is the philosophy of the founding generation and its relationship to the philosophy of civic republicanism. [219]

Another historian whose work should have attracted Gun Crazy's attention is Joyce Lee Malcolm, whose specialty is the political and legal history of early modern England, colonial America, and the early Republic. Professor Malcolm's recent book should have been well known to Gun Crazy's author, [220] especially because it received extensive publicity [221] and has been hailed by scholarly reviewers as the definitive historical treatise on the right to arms. [222] Furthermore, she had previously published articles in law reviews and historical journals to the same effect. [223] Her findings should certainly have presented an important target for Gun Crazy, given her book's pre-eminence and the support it lends to what Gun Crazy derides as "a constitutional deception."

Summarizing those findings, Professor Malcolm writes:

The Second Amendment was meant to accomplish two distinct goals. . . . First, it was meant to guarantee the individual's right to have arms for self-defence and self-preservation. . . . These privately owned arms were meant to serve a larger purpose as well . . . and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public . . . the militia [being] . . . the body of the people. . . . The argument that today's National Guardsmen, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation. [224]

However desirable it might have been to respond to this, doing so presented a grave problem for Gun Crazy: Joyce Lee Malcolm was not an endorser of the A2A statement; she has never belonged to a pro-gun group; and the research underlying her book was sponsored not by any gun group but by the American Bar Foundation, Harvard Law School, and the National Endowment for the Humanities. [225] Moreover, she had been very critical of Stephen Halbrook's book, which is the single most important influence and scholarly source for pro-gun advocates (although she concurs in Halbrook's view of the Amendment's purpose and meaning). [226]

Bereft, therefore, of any ad homines to hurl at Professor Malcolm, Gun Crazy simply ignores her. Malcolm's is yet another body of uncongenial scholarship with which it fails to acquaint its readers.

2. Falsifying the Scholars' Actual Views

It is not true that the advertisement sponsored by Academics for the Second Amendment and endorsed by over seventy scholars has "spread the gun lobby's gospel" or has "provide[d] much-appreciated scholarly seals of approval for the NRA." [227] We think that it is highly revealing, indeed deceptive, that Gun Crazy fails to reprint the text of the A2A-sponsored statement. For, had Gun Crazy provided readers with its text, they would have found that Gun Crazy wildly misrepresents the views of those who endorsed this letter.

Contrast Gun Crazy's characterization with the actual words of the A2A statement, particularly those we emphasize in its final paragraph:

The view that the Second Amendment to the Constitution of the United States guarantees only the states' right to maintain formal militias has attained a surprising respectability. That may be more explicable as an expression of the hostility many academicians feel towards guns and their owners than as an unbiased constitutional interpretation. The Second Amendment does not guarantee merely a "right of the states," but rather a "right of the people," a term which, as used throughout the Bill of Rights (e.g. the First and Fourth Amendments), is widely understood to encompass a personal right of citizens.

Moreover, the Amendment refers to the "militia," a term which in the 18th Century meant not a formal military unit like the National Guard, but a system under which every household and every man of military age was required to own a gun in order to defend the community against tyranny, foreign invasion, and crime. The leading interpretations before Congress when it enacted the Bill of Rights affirmed that by the Second Amendment "the people are confirmed in their right to keep and bear their private arms"--"their own arms."

Furthermore, the "individual right" component of Second Amendment thought became even more prominent in constitutional theory due to the transformation wrought by and through the debates in the [Post-Civil War] Congress concerning the privileges and immunities of national citizenship. Many Congressmen pointed out that blacks in the South needed to be constitutionally protected in the citizen's individual, personal right to bear arms in self-defense.

Of course, the right to bear arms is no more "absolute" than is the right to speak, to publish, or to assemble. Hence, there is room for disagreement over the scope of Second Amendment rights, just as there currently exists legitimate disagreement over the scope of First Amendment rights of assembly and free speech. Nothing in this statement, therefore, is intended to deny either the constitutionality of, or the need for, sensible gun laws. [228]

Nothing in this statement validates Gun Crazy's insinuation that the signatories are promoters of gun lobby extremism.

In fact, Gun Crazy's misportrayal of the scholars it assaults is based on systematic nondisclosure of the fact that some of them have actually condemned the NRA position.

Even if one accepts [the individual right view of the Second Amendment], the overriding temptation is to say that times and circumstances have changed and that there is simply no reason to continue enforcing an outmoded, and indeed dangerous, understanding of private rights against public order. . . .

I am not unsympathetic to such arguments. It is no purpose of this essay to solicit membership for the National Rifle Association or to express any sympathy for what even Don Kates, a strong critic of the conventional dismissal of the Second Amendment, describes as "the gun lobby's obnoxious habit of assailing all forms of regulation on 2nd Amendment grounds." [229]

Anyone who diligently compares Gun Crazy to the articles it assails will discover an odd coincidence. Criticisms Gun Crazy offers of the pro-gun-rights position often coincide identically to such criticisms previously made by Levinson, Van Alstyne, and others whom Gun Crazy depicts as minions or fellow travelers of the gun lobby. Compare, for instance, the language italicized in the quotation from Levinson just given to Gun Crazy's criticism: "The gun lobby insists that the Second Amendment is an all-purpose barrier to virtually all gun control proposals." [230] Or compare the analogy Gun Crazy draws: "Viewing the Second Amendment as an absolute barrier to firearms regulation is like the assertion that the First Amendment's Free Speech Clause absolutely prohibits any speech regulations" [231] to the following passage from the article by Van Alstyne that Gun Crazy severely criticizes: "The freedoms of speech and of the press, it has been correctly said, are not absolute. Neither is one's right to keep and bear arms absolute." [232]

3. The Relevance of Guilt by Association

Gun Crazy's charges against Amar, Levinson, and other scholars raise issues which Gun Crazy itself never directly addresses. Once again, all these scholars actually did was sign a statement that summarized their previously expressed views on the Amendment, a statement which Academics for the Second Amendment then publicized in 1993. Gun Crazy uses this only as a smear, an unelaborated innuendo. There is not even an attempt to explain how conclusions Levinson and Amar reached in their respective 1989 and 1991 Yale Law Journal articles [233] are impugned by the fact that years later they endorsed a statement summarizing those same conclusions. Even assuming that Gun Crazy were correct in charging Amar and Levinson with membership in A2A, a group that did not exist until late 1992 [234] (not 1993 as alleged by Gun Crazy), [235] Gun Crazy does not attempt to explain how that would impugn conclusions they independently reached years before.

This leads to some broader reflections on guilt by association as legal reasoning. Suppose that, when Levinson and Amar began their research, they had both been members of the NRA (which did exist at that time). Is that a basis for discounting their scholarship as Gun Crazy does? It is surprising--or is it?--that Gun Crazy fails to make a charge that is logically indistinguishable and that has the added advantage of actually being true of Levinson and Van Alstyne. They are both members of the ACLU, on whose national board Van Alstyne served for many years. If their supposed A2A membership would discredit their view of the Second Amendment, surely their ACLU membership must equally do so (not to mention discrediting their views of the rest of the Bill of Rights). Similarly, Professors Cottrol and Diamond are members of the NAACP and other national groups opposing the death penalty. [236] Does this association discredit Cottrol's adverse law review articles on the death penalty? [237] Are Cottrol and Diamond now to be precluded from writing on the death penalty or on legal issues involving race? [238]

Presumably Herz would answer these questions in the negative. Yet what is the likely effect of an attack like Gun Crazy's? Will it not be to deter additional scholars from publishing their agreement with the broad individual right view of the Second Amendment? Will not others now think long and hard before lending their name to an advertisement on an important legal question with which they are in entire agreement, indeed an ad which endorses and communicates the conclusions they reached during the course of their scholarship? In sum, will not Gun Crazy contribute to the "ugly cross-talk, [that] may simply be too off-putting for the taste of many in the legal academy, quite a few of whom have intentionally eschewed the often confrontational stance of the practicing lawyer"? [239] That certainly appears to be its intended effect.

II. Factual Errors and Sloppiness

In addition to the ad homines intended to malign both Second Amendment scholarship and the scholars described in Part I, Gun Crazy is replete with factual errors. Some of these errors concern its analysis of legal scholarship. Others concern facts about the National Rifle Association and firearms. When considered together, these errors suggest that Gun Crazy is more a polemic than a serious contribution to legal scholarship.

A. Fudging the Count in Order to Minimize the Scholarly Consensus

Gun Crazy seeks energetically to dispel the overwhelmingly contrary scholarship by statistical legerdemain, but is hampered by its own slovenly research and by the disability that doomed so many of us to law school: inability to count. For reasons addressed below, Gun Crazy purports to limit the scope of its count to full-time law professors listed in the 1993-94 AALS Directory of Law Teachers [240] as teaching constitutional law, who have published articles focusing on the Second Amendment. [241] Gun Crazy proceeds to assert that "only nine [of these professors] have ever written a law review article focusing on the Second Amendment," [242] to which it appends a footnote listing ten authors, not nine. [243] Inexplicably, five of those listed do not meet the specified criteria [244] while four others who do meet the criteria are omitted from the footnote. [245] The criteria chosen exclude three other constitutional law professors whose indicated support for the broad individual right view appears very briefly in articles devoted to other topics. [246]

Later in the same paragraph Gun Crazy asserts that "[f]ull-time law professors [have] penned only ten articles focusing on the Second Amendment," of which it counts seven "on the broad individual right side" and three on the other. [247] But Herz misanalyzes the law professors' articles he cites and thus overcounts the number of articles supporting his militia-centric view.

Far from supporting Gun Crazy's position, Professor Stephanie Levin takes the position held by those whom Gun Crazy denounces. Indeed, she favorably cites in support of her position a scholar Gun Crazy dismisses as a gun lobby "warhorse" because he holds, as does Professor Levin, that the Second Amendment embodies both collective and individual purposes. By guaranteeing individuals the right to have arms for self-defense it also protects the collective arms of the militia, which consists of the military-age male citizenry bearing their own arms. [248]

Although it is true that Carl Bogus (who Gun Crazy neglects to mention was a member of the Board of Directors of the Center to Prevent Handgun Violence) feels a strong affinity for the narrowest possible view of the Second Amendment, it is difficult to classify the article by Bogus that Gun Crazy cites as squarely supporting its view of the Second Amendment. [249] Insofar as Bogus discusses the matter, his article offers multiple conclusory denials that the Amendment protects individual gun ownership. But the argument made by Bogus in support of these denials undermines Gun Crazy's militia-centric view of the Second Amendment. Bogus's thesis is that the Amendment's real purpose was to guarantee the ability of white slaveholders to keep control over their black slaves. Assuming that was one of the purposes, it would seem to support, not contradict, the idea of the Amendment as a broad-based right of individuals (that would now extend to blacks as well as whites).

It is important to note two unannounced effects of Gun Crazy's exclusion of all but "[f]ull-time law professors": First, that exclusion relieves Herz of the need to mention, count, and respond to law review articles by professional historians, all of them adverse to his position. [250] A second advantage Gun Crazy obtains from concentrating only on law professors is that it allows Herz to dismiss twenty-five law review articles whose authors Gun Crazy categorizes as "leading gun-rights litigators and lobbyists"; [251] "[f]ive warhorses [who] have pulled virtually all of the load"; [252] "a band that essentially knows just one tune"; [253] "gun-rights advocates . . . [who] share the extreme views of the NRA." [254] This is highly misleading. One of the supposed one-tune band members, Don Kates (one of the authors of the present Article) devotes much of his scholarship to striking discordant notes: arguing for the constitutionality of licensing, registration, and other controls that are anathema to the gun lobby; [255] endorsing several such controls; [256] and severely rebuking the gun lobby for myopic and constitutionally unwarranted opposition to them. [257] Contrary to Gun Crazy's innuendos, this old warhorse has neither been urged nor paid by the gun lobby to write articles. In fact, his articles have been denounced in the pages of the American Rifleman as "Orwellian Newspeak" [258] by Stephen Halbrook, whom Gun Crazy also classifies as a warhorse who, like Kates, supposedly belongs to a "band that essentially knows just one tune." [259] Kates and Halbrook have publicly debated each other as to the permissible scope of gun control under the Second Amendment. [260]

B. Defaming the "Necromerchants"

Because our primary purpose here is to respond to the serious charges that Gun Crazy makes about Second Amendment scholarship and scholars, we do not address the pages of dubious allegations and invective Gun Crazy directs against the NRA and the gun industry. Yet some of its claims are so patently false, even absurd, that they evidence Gun Crazy's slipshod treatment of facts.

One cannot always tell whether Gun Crazy's factual errors are deliberate or merely the result of sloppiness or credulity. Sometimes they are offered to buttress its arguments, but other times they are not. As an example of the latter, Gun Crazy asserts, "[t]here are two types of handguns--revolvers and pistols." [261] It then offers the following definition of "pistols": "[P]istols, actually semiautomatic handguns, hold between 14 and 17 cartridges . . . ." [262] Slight research would have informed Herz that there are other types of handguns than revolvers and semiautomatics, and there is no significance whatever to the figure of fourteen to seventeen rounds. [263] Defining the category semiautomatic pistol as holding "between fourteen and seventeen cartridges" is comparable to defining the category "flower" as ranging in color from red to pink.

Other false claims offered in support of its polemic against guns, gun manufacturers, gun-rights activist groups, and Second Amendment scholars are more disturbing. They are not only false, but so serious and demonstrably false that they reveal Gun Crazy to be a work of propaganda.

1. Marketing Candy-Colored Guns for Kids

Dubbing gun manufacturers "necromerchants," [264] Gun Crazy claims that they "often target their products for use by children and criminals." [265] To support its claim with respect to children, Gun Crazy asserts that gun manufacturers "are turning out weapons in 'bright Crayola-crayon colors. . . .'" [266] Having never heard of such a thing, we checked with Eugene J. Wolberg, the firearms examiner and Senior Criminalist for the San Diego, California, Police Department. [267] After he finished laughing, Wolberg explained the matter: Only one of the "necromerchants," Eagle Arms, has ever produced firearms in such colors. It did so as a gimmick on not-for-sale advertising models of target match rifles it displays at industry shows. A child who attends gun industry shows and can afford the $2,000 price of an Eagle target match rifle can buy such a rifle (in black steel only, not in the Crayola-crayon colors). [268] Of course, s/he must be willing to wait for the rifle to be delivered after s/he reaches the age of majority. In addition, the Smith & Wesson Company produces its "Ladysmith" pistols and revolvers in colored versions; but these are subdued pastels and are marketed to women, not children. [269]

2. Marketing Fingerproof Guns to Criminals

Then there is Gun Crazy's claim that the "necromerchants" design guns for sale to criminals. This is one of multiple falsehoods for which Gun Crazy relies on citations to Josh Sugarmann. [270] Quoting Sugarmann, Gun Crazy asserts that one manufacturer advertises "a TEC-KOTE [finish that] provides a natural lubricity . . . [that offers] . . . excellent resistance to fingerprints. . . .'" [271] Wolberg comments that this is "taken completely out of context" in order to mislead people who have no knowledge of firearms. [272]

What the advertisement is actually concerned with is not the issue of police fingerprint detection, but the fact that fingers carry a natural acid that can corrode and mar a firearm's finish unless it is carefully relubricated after each time it is handled. What the advertisement conveys to those who are familiar with firearms is that TEC-KOTEd firearms resist such corrosion. The TEC-KOTE finish is irrelevant to police fingerprint detection techniques; police laboratories have no more difficulty lifting