From 1888, when law review articles first were indexed, through
1959, every single one on the Second Amendment concluded it did
not guarantee an individual right to a gun. The first to argue
otherwise, written by a William and Mary law student named Stuart
R. Hays, appeared in 1960. He began by citing an article in the
NRA’s American Rifleman magazine and argued that the amendment
enforced a “right of revolution,” of which the Southern states
availed themselves during what the author called “The War Between
At first, only a few articles echoed that view. Then, starting in
the late 1970s, a squad of attorneys and professors began to churn
out law review submissions, dozens of them, at a prodigious rate.
Funds — much of them from the NRA — flowed freely. An essay
contest, grants to write book reviews, the creation of “Academics
for the Second Amendment,” all followed. In 2003, the NRA
Foundation provided $1 million to endow the Patrick Henry
professorship in constitutional law and the Second Amendment at
George Mason University Law School.
This fusillade of scholarship and pseudo-scholarship insisted that
the traditional view — shared by courts and historians — was
wrong. There had been a colossal constitutional mistake. Two
centuries of legal consensus, they argued, must be overturned.
We don’t need to repeal the 2nd Amendment — although I think we should, insofar as it is inexplicably ambiguously written and punctuated — we just need to flip the Supreme Court to interpret it as it had been from 1789 through 2008.