Tuesday, October 21, 2008

Spitzer on Halbrook, The Founders' Second Amendment

The Founders' Second Amendment: Origins of the Right toBear Arms by Stephen P. Halbrook (Ivan R. Dee in association with The Independent Institute, 2008) is reviewed by Robert J. Spitzer, Distinguished Service Professor, Political Science Department, SUNY Cortland in the Law and Politics Book Review. "Is it possible for the NRA’s lead lawyer to produce writing that would ever deviate from this organization’s longstanding fealty to unfettered gun rights?" Spitzer asks, noting that Halbrook fails to mention this detail in his bio for the book. "It is a fair question. The nearest proximity to an answer lies in an evaluation of the work based on its own merits."

Spitzer notes that

Stephen Halbrook purports to offer “the first book-length account of the nature of the Second Amendment . . . during the generation of the Founders of the American republic” (p.ix). The author’s claim is disingenuous, however. While no book-length treatment focuses exclusively on the founding period, many books examine this ground in extravagant detail (e.g. Kennett and Anderson 1975; Cornell 2000, 2006; DeConde 2001; Spitzer 2001; Uviller and Merkel 2002; Bogus 2002). Unfortunately, these writings receive little or no attention from Halbrook....

Halbrook’s analysis covers the colonial period, the Revolutionary War, the period of Constitution formation and adoption, the formulation of the Bill of Rights during the First Congress, and the early Federal period. The book concludes with a brief summary of how, in the author’s view, the amendment should be interpreted today. Suffice it to say that Halbrook’s view closely matches that of the HELLER majority. In his lengthy chronicle, Halbrook searches documents, text, letters, articles, speeches, and other references to guns, arms, and rights. In Halbrook’s telling, the revolutionary struggle against the British, the establishment of the American states and state, and the eventual addition of the Second Amendment, involved militia activities by citizens of the sort referenced in the Second Amendment, which says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” But Halbrook also insists these activities enshrined, and are inseparable from, an individual right to have guns unrelated to militia service, in the way modern-day individualists choose to read the amendment.

The underlying problem with Halbrook’s analysis is three-fold: first, it tries to paste a modern concept into an historical construct; second, it leaves by the wayside any context, evidence, arguments, or complexity that does not support his point of view; and third, Halbrook pursues his task like a lawyer trying to persuade a jury rather than like a researcher trying to understand what the past actually shows. Thus, historical references to individuals and guns prove his argument, but evidence that shows the opposite also somehow proves his argument, too. In Halbrook’s view, any early American who had a gun was exercising an “individual” right, regardless of who, why, or under what circumstances. A non-falsifiable argument may sway a jury, but it is not social science.

Continue reading here.

1 comment:

Mojave Joe said...

Appropos of this post is today's article by Adam Liptak in the New York Times, "Ruling on Guns Elicits Rebuke From the Right".

http://www.nytimes.com/2008/10/21/washington/21guns.html?_r=1&hp&oref=slogin