Constitutional Law

Subsequent history

After that article, the sequence went something like this: Dave Caplan published one in 1977, Don Kates and Steve Halbrook and Joyce Malcolm came in in 1978-79. Halbrook, Malcolm, Kates and I put out a number of articles in the lesser law reviews over the next few years. These were the years of discovery. Joyce was heavily involved in the English right. Steve discovered the newspaper articles by Tench Coxe that described the Second Amendment as protecting "private arms." I found the Senate Journal that showed the Senate rejected "bear arms for the common defense." Etc., etc.

Kates was then a law prof., which opened some doors. In 1983, he wrote a big article that summed up the discoveries to date, and got it into the Michigan Law Review. In terms of prestige, Michigan L. Rev. is clearly in the top ten. Articles in Chicago-Kent or Northern Kentucky or St. Louis University might pass under the radar of big name academia, but not one in Michigan.

Things started changing rapidly, then. Sanford Levinson, a major con law prof. at Texas, read it, was impressed, and wrote his own article arguing that by all the standards used in construing the Constitution, the 2A had to be an individual right, and got it in the Yale L.J. William van Alstyne, one of the biggest names in con law, brought out an article in Duke L.J.. Akhil Amar of Yale started publishing on the same subject. A topic that a few years before had no interest or attention now was being written on by the major figures in constitutional law, and in the most prestigious journals.

And that ultimately is the movement that made Heller possible. In 1980, the right to arms was a minor academic issue. By 1995 it was a major one, with all the big names analyzing why it was an individual right. In that year Tennessee Law Rev. hosts the first right to arms symposium issue (one where every article in an issue of the review is on the same subject).

I've suspected that we were aided by a very human factor. The 1960s and 1970s had seen major events and fights in Con law.... search and seizure, incorporation, Miranda, Roe v. Wade, obscenity standards that swung to and fro, etc. By 1990 these had all played out. There was still skirmishing over details, but no more big causes, and who wanted to write another article on obscenity or on the details of Roe v. Wade? Suddenly, people realize there's an entire amendment out there that could be discussed.

Full post as published by Of Arms and the Law on January 27, 2010 (boomark / email).