To Keep and Bear Arms

Second Amendment Symposium Issue

Tennessee Law Review, Spring 1995
University of Tennessee–Knoxville College of Law, 378 pp., $7.00 (paper)

To Keep and Bear Arms: The Origins of an Anglo-American Right

by Joyce Lee Malcolm
Harvard University Press, 232 pp., $29.95

Guns, Crime, and Freedom

by Wayne LaPierre, foreword by Tom Clancy
HarperPerennial, 263 pp., $12.50 (paper)

An Argument, Shewing, that a Standing Army Is inconsistent with A Free Government, and absolutely destructive to the Constitution of the English Monarchy

by John Trenchard
London

Over the last decade, an industrious band of lawyers, historians, and criminologists has created a vast outpouring of articles justifying individual gun ownership on the basis of the Second Amendment: “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.”

This body of commentary, much of it published in refereed law journals, has changed attitudes toward the Second Amendment. The National Rifle Association’s lobbyists distribute it to legislators. Journalists like Michael Kinsley and George Will disseminate this school’s views. Members of it now claim, on the basis of their work’s quantity and what they believe is its quality, that scholarship on this subject is now all theirs—so that even to hold an opposing view is enough to “discredit its supporters,” according to the historian Joyce Lee Malcolm.1

The Tennessee Law Review devotes most of its Spring issue to a collection of articles by members of this school, including one that says its authors have created “the Standard Model” for interpreting the Second Amendment. To this mood of self-congratulation can be added the fact that a majority of Americans tell pollsters that they believe the Second Amendment protects private ownership of guns. So the defenders of that position feel they hold both the scholarly high ground and the popular consensus. The five who constitute a kind of inner circle of Standard Modelers—Robert J. Cottrol, Stephen P. Halbrook, Don B. Kates, Joyce Lee Malcolm, and Robert E. Shalhope—recycle each other’s arguments energetically. Three of the five write in the Tennessee Law Review issue, one of them (Malcolm) devoting her essay to the fourth (Cottrol), while the fifth (Shalhope) is frequently cited.

Then why is there such an air of grievance, of positive victimhood, in the writings of the “Standard Model” school? They talk of the little honor they are given, of the “mendacious” attitude of the legal establishment, of a rigidity that refuses to recognize their triumph. Don Kates (with co-authors) sputters in mixed metaphors of an opposition that “exists in a vacuum of lock-step orthodoxy almost hermetically sealed from the existence of contrary data and scholarship.”2 Randy E. Barnett, introducing the Tennessee Law Review symposium predicts dire things if people do not “accord some respect to those citizens (and academics) whose views it [the Standard Model Scholarship] supports.”3 Glenn Harlan Reynolds, in the article stating the Standard Model thesis, argues that militia extremism may be fueled by the Model’s opponents, who are “treating the Constitution, too, as a preserve of the elite.”4

Their own reciprocating nods and citations of approval are apparently not enough for these authors. Nor is popular support enough. They still talk like Rodney Dangerfield, getting no respect. They should ask themselves more penetratingly why this should be. Perhaps it is the quality of their arguments that makes them hard to take seriously.

Take the case of Stephen P. Halbrook, one of the central figures in this new…


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