Monday, December 17, 2012

Daily Read: Carl Bogus on Second Amendment Constitutional Scholarship

With renewed attention on the Second Amendment and guns after Friday's horrific events,  a provocative (re)read is Carl T. Bogus' 2000 article, The History And Politics of Second Amendment Scholarship: A Primer, published in a Symposium on the Second Amendment in Volume 76 of Chicago-Kent Law Review, and available on the Second Amendment Foundation website here

Bogus_C2Professor Bogus (pictured) who has written widely on the Second Amendment discusses the involvement of the legal scholarly community with Second Amendment issues and organizations. Writing years before the Court's 5-4 decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), Bogus traces the move from the "collective right" model (stressing the militia aspect) of the Second Amendment that was universal until 1960, including the efforts of organizations to fund work friendly to the individual right interpretation of the Second Amendment, which became known as the "Standard Model."

Bogus stops short of arguing scholars were improperly influenced, but argues that the influences are worth considering, writing:

One last note before concluding. I have written about the campaign to develop a large body of literature supporting the individual right position and to create a perception that this view constitutes a standard model of scholarship (a perception this Symposium is likely to end). I have observed that some writers have connections to gun rights organizations, and even that some received grants in connection with their writings. I do not, however, contend that anyone was paid or improperly influenced to advocate a position that he or she does not genuinely hold. On the contrary, I am convinced that individuals identified in this Article believe - - - many passionately - - - in what they have written. And I believe everyone, regardless of political affiliation or belief, is entitled to have his or her work judged on its merits.

Why then discuss the history and politics of Second Amendment scholarship? Why not focus entirely on the merits? The history and politics of Second Amendment scholarship, including to some extent the political affiliations and agendas of the participants, is relevant because so-called standard modelers made it relevant. They have made much of both the size of the individual right literature and the prominence of certain scholars endorsing that position.  It is important, therefore, to understand the history and politics that have helped bring these about.

Although more than a decade old, Carl Bogus article is certainly worth a (re)read by constitutional scholars.

RR

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