Wednesday, March 26, 2008

More on the second amendment

Sandy Levinson

This comes under "shameless self-promotion." In any event, I have a review in the just-published March 2008 issue of Reviews in American History of two recent books on the Second Amendment by Saul Cornell and Mark Tushnet that some of you may be interested in.


I have not been able to access the review, only the abstract, because of subscription limitations. Any help?

I read Saul Cornell’s “A Well Regulated Militia” last year and was impressed with the approach taken by a historian regarding the Second Amendment. I recently read the “historians brief” in support of the District in Heller, in which Cornell was one of 15 Amici historians, several of whom had written treatises or articles on the Second Amendment.

This brief was quite readable despite limitations on length such that the arguments of these historians were significantly reduced from their extensive writings on the subject. The brief makes this point (at page 33):

“The historian’s recurring complaint about ‘law office history,’ as it is colloquially disparaged, is that it routinely indulges in the selective and uncritical use of quotations, stripped from the context in which they were uttered, and given meanings that contemporaries would have been astounded to learn they carried. See, e.g., Don Higginbotham, The Second Amendment in Historical Context, 16 Const. Comment. 221 (1999). Because of the exceptional passions surrounding the Second Amendment, this one realm of constitutional controversy appears more susceptible to this kind of misuse than any other. A vast and sometimes vituperative literature has grown up around this subject, and sorting out claims and counterclaims can require heroic efforts.”

Several of these 15 historians are legal historians of prominence. I don’t know if there are differences in the disciplines of legal historians and non-legal historians. But they seem to agree on “law office history.”

Of course, it's worth remembering, when historians complain about "law office history", that Bellesiles won the Bancroft award, and the plaudits of his fellow historians, after he'd been exposed as a fraud by legal scholars and amateur historians.

Historians are as prone to letting their politics get in the way of their professional standards as anybody.

I apologize for the insufficiency of the link. I'll be glad to send a copy of the review to anyone who asks me via

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