"Devastating critique of Standard Model"
LEVINSON at JURIS.LAW.NYU.EDU
Mon Sep 6 15:51:00 PDT 1999
Re Suzanna Sherry's reference to the "devastating critique" of the "Standard Model" in regard to the Second Amendment. "Devastation" is probably, like beauty, in the eyes of the beholder (illustrating yet once more my hopeless commitment to the kind of post-modernism that Professor Sherry has criticized elsewhere.) In any event, I don't read Professor Cornell's article as "devastating." You may be interested in reading a message that I was happy to send to Professor Cornell:
I read with great interest your piece in the current Constitutional Commentary. You may be surprised to know that I agree with much of what you said. I strongly agree that context is crucial, and I certainly think you score some significant points. One of the things I have insisted over the past decade is that the purpose of my (notorious?) essay was not so much to articulate a "definitive" meaning of the Second Amendment (the doing of which would certainly require doing the kind of work you suggest), but, rather, to suggest that the elite legal academy had scandalously avoided paying the slightest attention to the fascinating issues raised by the Amendment. I then offered what struck me, on the basis of what I had read at the time, as a plausible reading of the Amendment along the lines that you summarized. I have never publicly committed myself to a position as to what the Second Amendment means for us today, though I did try to indicate in the Yale piece why I thought it was terrible that elite academics had disdained any real wrestling with the amendment in favor of quoting a Parade magazine article by Warren Burger and a murky opinion by James McReynolds as almost literally the last words on the meaning of the Amendment. (I have written that it has been a political mistake for the Democratic Party to support some gun control measures, such as the 1994 "assault weapons" ban, which some very able political scientists (and White House tacticians, in retrospect) [argue] helped contribute to the 1994 debacle.)
I much prefer your approach, which, as I understand it, says that much more work needs to be done before anyone, on any side, can allege having presented anything close to a "definitive" account of the original meaning (or initial assumptions) underlying the Amendment, to that, say, of Garry Wills. Wills, I think, is every bit as overconfident as some of the "Standard Modelers" whom you criticize. (Incidentally, though my work is cited by the "SMs," and many of them are my personal friends, I think that the term is unfortunate, for the reasons you suggest.) Do you disagree?
One difference, of course, between lawyers and historians, and, even more certainly, between adjudicators and academics, is that the time for decision is almost undoubtedly going to be shorter than the time necessary to do the kind of Skinnerian work that is necessary to do the kind of contextual history that you commend. I'm not sure what you think the Second Amendment should be interpreted to mean today, should you be forced to make a decision. I read your article much more as a call for further research than an argument that the "Standard Modelers" are "wrong" per se in their ultimate conclusions (as against being way, way too confident about the validity of their conclusions).
I think what is badly needed is a first-rate account of the political pressures that explain the placing of the Second Amendment in the Constitution. Even if one takes the position that it merely protected the rights of states to have militias, that still implies that only the states, and not the national government, could restrict gun ownership. (I find your information about Pennsylvania very interesting.) I also happen to agree with Akhil Amar that the Second Amendment, like all the Bill of Rights, had become transformed by 1868, so that by that time there *was,* I believe, a far more liberal-individualist account of the Amendment than existed in 1789-9 [and it would have been that account that would have been "incorporated" into the understandingn of privileges or immunities protected against abridgment by the states].
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