Mis (Not Quite) Quoted by the AP:
Yesterday I engaged in an email interview with a reporter from the AP, who today in this story inaccurately attributes the following view to me:
To the contrary, in my view, because the Second Amendment by itself applies only to the federal government, whether or not states may violate a right to keep and bear arms is a Fourteenth Amendment issue. Originally, such an individual right to arms was meant to be protected by the Privileges or Immunities Clause. Ahistorically today, it would have to be "incorporated" into the Due Process Clause. Therefore, it is quite easy to imagine the Supreme Court accepting an individual rights interpretation of the Second Amendment and then not applying it to the states via the Fourteenth Amendment. That issue is not on the table (immediately at least) in the Heller case.
The interview actually concerned DC's claim that because the District was LIKE a state, and because the Second Amendment only protected the right of a state to have a militia (and also that it did not originally interfere with the internal discretionary powers of states), the Amendment did not apply to DC. It was this claim (in bold) that I viewed as both strained and "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well." Here is what I wrote in my very brief email:
I am positive that this was an innocent oversight by the AP reporter, and this is not the worst view with which to be wrongly associated. However, because past quotes of mine in wire service stories have spread widely on the net, although I doubt that this correction (or even one by the AP itself) can catch up to this misattribution, I felt it necessary at least to try to correct the record here.
Randy Barnett, law professor at Georgetown University, agreed that the argument is strained, and said that if the high court accepts the notion that the right to bear arms is an individual right, it would be hard pressed to turn around and allow the district and the states to violate that right.The actual quote is correct. The view attributed to me in the italicized portion of the story, but not actually quoted, was not even the subject of our exchange.
The district's interpretation "is at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well," Barnett said.
To the contrary, in my view, because the Second Amendment by itself applies only to the federal government, whether or not states may violate a right to keep and bear arms is a Fourteenth Amendment issue. Originally, such an individual right to arms was meant to be protected by the Privileges or Immunities Clause. Ahistorically today, it would have to be "incorporated" into the Due Process Clause. Therefore, it is quite easy to imagine the Supreme Court accepting an individual rights interpretation of the Second Amendment and then not applying it to the states via the Fourteenth Amendment. That issue is not on the table (immediately at least) in the Heller case.
The interview actually concerned DC's claim that because the District was LIKE a state, and because the Second Amendment only protected the right of a state to have a militia (and also that it did not originally interfere with the internal discretionary powers of states), the Amendment did not apply to DC. It was this claim (in bold) that I viewed as both strained and "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well." Here is what I wrote in my very brief email:
This part of the District's argument depends entirely on its claim that the Second Amendment only protects the rights of states to preserve their militias. This is not what the amendment says. What it says is that, given the importance of having a militia, the "right" of "the people" (which everywhere else in the Bill of Rights refers to individual rights) shall not be infringed. So while the district's argument has been accepted by many courts of appeals in the 20th Century, it is wrong.Other than a report by the Cybercast News Service of a talk I gave at Brookings Institute that, by being badly written, inadvertently made it appear as though I opposed the individual rights interpretation of the Second Amendment, this is the first time I have been misquoted by a reporter, except in this story the actual quotation was indeed mine.
I am positive that this was an innocent oversight by the AP reporter, and this is not the worst view with which to be wrongly associated. However, because past quotes of mine in wire service stories have spread widely on the net, although I doubt that this correction (or even one by the AP itself) can catch up to this misattribution, I felt it necessary at least to try to correct the record here.
I've discussed the service here.
Thankfully she put her incorrect addition in square brackets, to make it clear I hadn't said it, but I guess I didn't do as good a job explaining the story as I thought I had.
I'm surprised that more reporters don't send a draft of the article to the experts interviewed, just to confirm that their views haven't been misrepresented. This wasn't really a time-sensitive story anyway, and I'd have caught the howler immediately.
You might think it was an innocent error; but chances are that whichever liberal reporter wrote that article is probably against individual gun ownership rights. And since you are a smart guy, you must think like he/she does.
I will never tire of seeing that point reiterated, if I live to be 1,000 years old.
Having worked in journalism for some decades, I don’t see a lack of concern as the real problem. Decent reporters do care about precision.
Of course, reporters aren’t lawyers. That fact has much more to do with the “approximately right at best” phenomenon than disregard for precision.
Really good reporters are better at compensating for a lack of subject-matter expertise than what Prof. Barnett quoted, but (gross generalization) these reporters tend not to work for wire services.
So the error is the inclusion of the phrase "and the states" in the story?
Your writing is quite dense, unnecessarily so, and requires several readings to try to ascertain your meaning. That's true of most lawyers, however.
As a Scientist I prefer accuracy in journalism and the law. You can be dead wrong and be very precise. Hitting the bullseye is accuracy, hitting the same spot multiple times is precision.
Both accuracy and precision are to be desired.
the right of the People to keep and bear arms shall not be infringed.
we need a militia to secure the freedom of our nation.
but, because we need a militia and militias are somewhat dangerous, the people shall have the right to arm themselves in the case they need to defend themselves against said militia.
One reading of it thus being, that the right to defense extends beyond personal, even external threats, all the way to internal threats, ie, against the state itself.
Well THAT's a novel twist. Contrast that with Miller, which noted that the militia were to muster, typically bearing their own arms (and thus the mis-applied militia-relevance test). Sorry, I don't think you'll find much support for a defense against militia angle.
Our local lobbyist to the state legislature knows the reporters from the local rag (Denver Poet and Rocky Mountain News) and as a matter of practice, won't give them the time of day.