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Boston University Law Review May, 1995
Correspondence
[Page 529]

RESPONSE TO GUN CRAZY: CONSTITUTIONAL FALSE CONSCIOUSNESS AND DERELICTION OF DIALOGIC RESPONSIBILITY, BY ANDREW D. HERZ,
PUBLISHED IN THE JANUARY 1995 ISSUE OF THE LAW REVIEW, 75 B.U. L. REV. 57:

A letter from Professor Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Regents

Chair in Law, University of Texas School of Law:

May 18, 1995 To the editor:

Professor Andrew D. Herz offers an extensive -- and clearly heartfelt -- attack on those, like myself, who defend the legitimacy of "broad" interpretations of the Second Amendment. Fully to respond to his various points would require an article of at least equal length, and this is certainly not that response. I do, however, consider it important to correct one factual error.

Professor Herz describes me as a "member[ ] of the anti-gun-control group Academics for the Second Amendment," [Page 144 n.396; see also pp. 140 - 41]. That is false. What is true is that I, along with several other academics, signed "An Open Letter on the Second Amendment," and the space for that letter was, I gather, bought by a group called Academics for the Second Amendment. I was happy to sign the letter inasmuch as I believed that what it said was correct and badly needed airing. At no time was I told that I was becoming a "member" of an ongoing organization, nor do I consider myself such.

This is an honest mistake by Professor Herz, but mistake it is, nonetheless. I am a member of the American Civil Liberties Union, Amnesty International, and the Southern Poverty Law Center, among other groups. I am not a member of Academics for the Second Amendment, though I would not hesitate to sign other letters identified with that group if I agree with their content, as I have signed letters in the past involving a variety of contentious political issues.

It is, incidentally, also inaccurate to describe the letter as "anti-gun- control." It argued only that it was past time to take the Second Amendment seriously, but it also explicitly stated, as I recall, that taking it seriously did not mean that all controls were unconstitutional, any more than taking the First Amendment seriously implies an "absolute" right to freedom of speech. Nor, for what it is worth, did the letter say that the Second Amendment is necessarily a good [Page 530] thing. That is, I'm not sure that I am for the Second Amendment, any more than I am for a number of other aspects of the Constitution that I believe are stupid or even pernicious in their consequences. (I invite anyone interested in this point to consult a symposium on "Constitutional Stupidities," co-edited by Professor William Eskridge and myself, forthcoming in Constitutional Commentary.)

What I do believe is that, for better or worse, the Second Amendment is part of the Constitution and that the legal academy, especially its liberal wing, has been grossly irresponsible by basically pretending either that it does not exist at all or, upon recognizing its existence, neutralizing it of any real meaning. Insofar as we have tolerated interpretive methods in regard to the Second Amendment that we would not stand for concerning any part of the constitutional text that we genuinely care for, I believe that this process of neutralization has been costly to our intellectual integrity as constitutional scholars. Professor Herz obviously disagrees, and I welcome his contribution to an important debate.

Editor's Note: The editors of the Law Review would like to clarify the basis on which Professor Herz rested his assertion that Professor Levinson was a member of Academics for the Second Amendment. During the editorial process, the editors checked Professor Herz's original sources, including the published version of the "Open Letter" from the National Review. [Page 144 n.396.] That advertisement presented a stylized letter with a box overlay soliciting contributions to the group. The fundraising box listed one Joseph Olson as President of "Academics for the Second Amendment." At the right margin of the advertisement, wholly separate from the text of the letter (presented neither as signature lines below the letter nor as letterhead), was a list of academics including Professor Olson and Professor Levinson. From the name of the group and those objective manifestations the author and the editors of the Law Review concluded that the academics listed were members; copies of the advertisement and related materials are on file with the Law Review. In addition, the Law Review would like to make one final clarification regarding Professor Levinson's claim that the Article mischaracterized the "Open Letter" as "anti- gun-control." The Article asserts only that the group Academics for the Second Amendment, and not the particular letter that Professor Levinson signed, is anti-gun-control. [Pages 144-45.]