The author’s reply to my A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. Rev. 1521 (2010) raises an interesting point that I thought worth elaborating on.
The reply does take issue with my description of the original article’s claims: “[N]othing in my Article or the passages he selects claims the existence of especially frequent or unduly burdensome regulation of those groups.” I don’t think that sentence in the reply is quite right, but I explain my thinking on that in my Cautionary Note itself. Here, I want to focus a couple of other statements in the reply:
A less-than-careful reader might believe, based on Professor Volokh’s Cautionary Note, that the statements he finds objectionable are of central relevance to my Article. They are not….
I provide ample support for the proposition that aspects of gun possession and use were colored by a racialized, gendered, citizenship-based, and wealth-based understanding of full membership in the American polity, including prohibitions on militia membership for several groups and restrictions on gun ownership by slaves and free blacks. This is the modest claim I intended to defend, and it is neither a novel claim nor an especially surprising one. Further, even this modest claim is ancillary to my thesis….
I also want to contextualize the importance of [Professor Volokh’s] clarification to my thesis. Quite simply, nothing in my argument turns on the strong claim that colonies or states exercised their authority to enact heavy prohibitions on gun ownership or use by women and poor whites. I have no interest in pursuing that auxiliary claim, precisely because my argument does not depend on it….
Thus, even incorporating Professor Volokh’s clarifications wholesale, they do not in any way affect my arguments in Part I, which challenges citizenship limitations on textual and doctrinal grounds, or Part III, which constructs and rejects theoretical justifications for citizenship-based exclusions in an individual gun-rights regime; nor do they diminish the strength my argument in Part II, which constructs a narrative of explicit xenophobic and racialized gun prohibitions throughout American history.
I appreciate the author’s point that the factual errors that I believe I’ve found are tangential to the original article’s thesis. I think the author is likely right on that score.
But the problem is that law review articles are often cited as support for precisely such tangential assertions. Judges, professors, student authors, and lawyers who are looking for a discussion of some topic A will often find that discussion as a small section of another article on a related but different topic B. They will then gladly rely on the article’s assertions about A, without any regard to their being tangential to the cited article’s broader point. The important thing for the author of the new piece is that the material he’s found is important to his piece, not that it is important to the original piece that he is citing.
What worried me about the NYU article, and what led me to write the Cautionary Note, is not a concern about whether the article’s main thesis is inadequately supported. Rather, it’s a concern that factual errors, however tangential to the article, may end up being repeated by other authors, who are relying on the NYU article’s assertions.
Some years ago, I noticed several authors making the assertion that indentured servants, and in one instance even women and the propertyless, were routinely barred from owning guns in the Colonies and in the early Republic. All those assertions turned out to rely on Michael Bellesiles’ pre-Arming America work that made such an assertion, especially Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 574, 576 (1998):
Repeatedly, colonial legislatures passed laws requiring white Protestant adult male property holders to own guns as a support for the local militia. Just so there would be no misunderstanding, such laws forbade other groups from owning firearms…. For the rest of the colonial period [most of the colonial legislatures] enhanced internal security by forbidding indentured servants to own or carry firearms.
I looked hard for sources supporting these assertions, but to the best of my knowledge those assertions are mistaken or (as to the first sentence) at least highly misleading; I know of no colonies or early states that forbade gun ownership by indentured servants, by women, or by non-property-owners. And yet other scholars understandably relied on those assertions, and propagated them further. Who knows how many readers have been inadvertently misled by them? And that’s a danger even as to those readers who have heard about the scandals involving Bellesiles’ Arming America, since they may have seen those assertions in articles written by other, reputable scholars who happened to be relying on Bellesiles.
To be sure, this Bellesiles example involves citation of claims that were indeed pretty central to the original article’s core claims. As I mentioned, the NYU article’s errors are more tangential to its core claims. But, as I said, readers often rely on tangential assertions as much as they rely on central ones. I want to do what I can to point out those errors, so that there will be less reliance. And I wish that the editorial process as to the NYU article had identified and corrected those errors.