As tends to happen with convoluted lies, the propagandists just can’t get their story straight about when “collective right” was first “perverted” into what was actually the simple truth all along—in the late 19th century (p. 135), the 1970s (p. 1733), or perhaps as late as the 1980s, depending on which “expert” you ask, though a fourth competing version seems to be the most popular. According to Tom Diaz, former lead House Democratic counsel on firearms,

 

From 1887 (when indexing began) until 1960, not a single law review article advocated the ‘individual right’ interpretation that Scalia found in the Constitution. Thwarted by the uniform view of the courts against unrestrained individual access by anyone, anywhere, anytime, to guns of any sort, the network of gun rights advocates turned their focus to one of the most peculiar and little-known institutions by which law is made in the United States—law review articles. 

 

The strawman of pure absolutism addressed in Lie #1 makes a particularly cartoonish cameo here, but of more note here is the similarity to this assertion by Michael Waldman, president and CEO of the Brennan Center for Justice at NYU School of Law: 

 

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.

 

These are just two of the more influential figures who rely on the claim by Prof. Robert J. Spitzer that until 1960, all law journal articles he found “reflected what is here labeled the ‘court’ view of the Second Amendment—namely, that the Second Amendment affects citizens only in connection with citizen service in a government-organized and regulated militia” (p. 366). It’s notable how Spitzer manages to sneak in Lie #2 by deeming “collective right” to be the “court view,” but his specific claim is likewise hard to take seriously in light of the following excerpts:

 

South-Western Law Journal and Reporter, 1844

 

“Could the legislature provide that none but those who are enrolled in the muster list shall bear arms, and then only on the days designated by law for that purpose? Or could they say that no volunteer association, organized on political principles, should be allowed to bear arms, or recognized as a military corps? Such an emergency, in the course of political events might arise, when the bearing of arms by partizan volunteer corps would be dangerous to the peace of society, and yet, could the Legislature prohibit the citizens from forming themselves into such associations, and prohibit the use of such arms as are used in civilized warfare? It would seem not; for if the right can be modified or confined by legislative enactments, so as to render the bearing of arms, lawful only on particular days, it might place those days so far from each other, as totally to deprive the citizen of his rights.”

 

The Southern Law Review, 1873

 

“The citizen has, at all times, the right to keep the arms of modern warfare, and to use them in such manner as they may be capable of being used without annoyance and hurt to others, in order that he may be trained and efficient in their use.”

 

United States Law Review, 1881

 

“Are we quite sure that the Indian is yet prepared to be invested with all our rights and privileges guaranteed by the Constitution,—among others, the right of trial by jury and the right to bear arms, and to enjoy one’s property without restraint?”

 

The Kansas Law Journal, 1885

 

“The constitutional militia is a thing into which a man grows by reaching his majority—he does not become a member by voluntary enlistment. The intention was that every able-bodied citizen should have a gun in his hands and know how to use it; then none need fear his neighbor nor a despot.”

 

Yale Law Journal, 1900

 

“The Constitution leaves the people of the several States supreme especially in the field of personal liberty…The truth (historical and logical) is that the ten amendments adopted on the proposal of the first Congress…prohibit the federal government from infringing the right of the people of a State to keep and bear arms, and the rest, but place no prohibition on the State itself.”

 

Perhaps the Yale article from 1900 really didn’t appear in the database Spitzer used, which he says began indexing law reviews in 1888, but he doesn’t seem to have searched anywhere else and his fundamental conclusion is incorrect regardless. His earliest article backing “collective right” is from 1912 (p. 364), furthermore, which aligns with its judicial creation in 1905 (see Lie #2) and its increasingly frequent appearance in newspaper editorials. So why did this period give birth to a government “cheat code” that allowed for potentially full civilian disarmament? Due to rapid urbanization and radical wealth inequality, the homicide rate skyrocketed from 1.1 in 1903 to 4.9 in 1907—“the ends justify the means.” That phrase doesn’t hold if the means inflict massive long-term damage on our entire system, however, and anyone who consents to a meaningless Constitution is delusional to think their political enemies won’t take full advantage. 

 

As for why there aren’t numerous law review articles vigorously defending “individual right” until even later in the 19th century, why would there be? This would have been frivolous at a time when it was already what almost everyone enthusiastically believed. Returning to a previous analogy, one would not expect to see articles about how the sky is blue except in response to green-sky theory gaining traction. “Collective right” has barely more of a basis in reality, but today’s authoritarian weirdos have the advantage of being able to cite the groundwork laid by their equally nutty counterparts of the recent past.

 

This is all laughable enough on its own, but the other component of Spitzer’s argument is so glaringly idiotic that one can’t help but wonder if his paper is actually some kind of performance art. He attacks law journals in general by arguing that they “provide a uniquely fertile breeding ground for the development of defective constitutional analysis” (p. 349), and Diaz goes even harder with this piece of world-class gaslighting:

 

Astonishing as it may seem to most ordinary Americans, these student-run journals supply an infinite variety of legalistic flakes for lawyers, judges, and their clerks bent on producing ‘snow jobs.’ By citing such articles as authority for their position on an issue, the authors can cloak their naked manufacture of law…in an aura of ‘scholarship.’

 

Fortunately for Spitzer and friends, apparently none of this criticism applies to the 76 law journal articles he cites as evidence for the validity of their favored “interpretation.” (p. 384).