Professor Sandy Levinson, of the University of Texas School of Law, is an interesting person. Decidedly left-wing, he is nevertheless at least somewhat famous among gun-rights advocates for his 1989 Yale Law Journal article, “The Embarrassing Second Amendment”, an article that helped make the case that the Second Amendment protects an individual right.
So it was really sad to see him sell out his integrity for his politics in this post about Heller
And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.
What, you ask, is wrong with that? The problem is his last sentence. For as Dave Kopel noted back in 2006, Saul Cornell’s book is anything but “fine”.
In a new draft article, “St. George Tucker’s Second Amendment: Deconstructing ‘The True Palladium of Liberty’,” Stephen P. Halbrook takes the reader step-by-step through Tucker’s monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker’s Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built his argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell’s thesis.
That, my friends, is fraud. Download it and read it for yourself. Then, just for fun, search the web for references to the article. The only ones I found were to positive comments about the article. So if Stephen Halbrook himself took anything out of context, no one (like, for example, Saul Cornell) has been able to show it.
In short, Saul Cornell is a dishonest hack, who wrote a dishonest book to push his personal (and professional, his research was funded by the anti-gun rights “Joyce Foundation”) political agenda.
Personally, I cannot imagine how Professor Levinson could be unaware of this, which would make his comments not merely clueless, but dishonest. But the fact that he couldn’t find a better book to bash Scalia with than this piece of trash says good things about Justice Scalia’s opinion. The fact that he tried to use that piece of trash to bash Justice Scalia, OTOH, says nothing but bad things about Professor Levinson.
This is an example of the kind of dishonestly that makes it impossible for me to be a member of the political left.