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David Hardy and the Second Amendment
By Michael Westfall, The American Conservative Worker
Sunday, May 13, 2007
David T. Hardy is a Tucson, Arizona attorney and an accomplished best selling author. In 2006 David completed an important documentary titled In Search of The Second Amendment. It is an essential film that all Americans should view. It offers viewers a full understanding of the American Bill of Rights and clearly reflects the importance of the Second Amendment.
MICHAEL WESTFALL:Mr. Hardy, I would like to welcome you to The American Conservative Worker.
We first met when you were writing your New York Times bestseller book titled Michael Moore is a Big Fat Stupid White Man. I furnished material and worked with you on one of the chapters of this book. I genuinely appreciate the honesty, candor and completeness of all the material you produce.
Before we get into your documentary on the Second Amendment, I would first like to ask you what is the story behind your best selling books unflattering title MICHAEL MOORE IS A BIG FAT WHITE MAN?
David T. Hardy: I still chuckle at the memory. When the publisher (HarperCollins) contacted Jason (my coauthor) and I, they said one thing was nonnegotiable: the title. We asked what it was. "Michael Moore Is a Big Fat Stupid White Man."
I was a bit startled and asked, couldn't we make it something a little more academic. They responded: we told you it was nonnegotiable.
They had published his first book, and came (as do most people who work with him) to loathe him. Their standard contract has an option clause: they have an option to buy your next book. In his case, they elected not to exercise it. Figure that his first book made millions for them ... when a business writes off millions to save the trouble of working with somebody, it says a lot!
MW: Michael Moore has exploited, politicized and capitalized on his opinions relative to gun issues. Just what do you make of Moore's sensationalistic outbursts?
DH: He's a true narcissist, and is money-hungry. He'll do anything to get his face out there, and make money. If Hollywood and the media loved guns, he'd be pitching it that way.
In fact I had some inside info that Bowling for Columbine started out as a fairly balanced movie on the gun issue. But in early private screenings, Hollywood types said -- if you make it balanced, you'll be ignored. Take out all criticism of antigun types, if you want to make it in Hollywood. He followed their advice, and got an Oscar.
That may in turn explain why the movie seemed so incomplete, if viewed as a documentary rather than as a rambling tale. Its main theme is a hit piece on NRA and Charlton Heston, but then at the end it argues that guns really aren't the problem, it's the media. Which means that having slimed Heston and the NRA, in the end it concludes that they have the correct position. That would be explicable if it started out as a bigger, more balanced, piece, and had large chunks cut out.
MW: I must say that your In Search of the Second Amendment documentary is both interesting and educational. How long have you been researching the second amendment?
DH: Thirty plus years, literally. My first law review article on it was published in 1974, when I was still a law student.
It was the first article in what you could call the modern academic trend toward recognizing it as an individual right. Dave Caplan followed with an article in '77, Joyce Malcolm began writing in 78 or so, as did Don Kates and then Steve Halbrook.
We were publishing in the lesser-known reviews until Don Kates got a piece published in the Michigan Law Review in late 1983. That was a breakthrough. The legal academic community gives stature to big names and big name reviews. None of us were big name in constitutional law, BUT the Michigan Law Review was a big name review, maybe one of the top five in the country. No law prof can read all the reviews (I think there are over two hundred now), but they read Harvard, Yale, Michigan, and a few others.
Kate's piece led to the big names in con law looking at the issue and publishing articles endorsing an individual rights view. I'm talking now Sanford Levinson of U. of Texas, Akhil Amar of Yale, Wm. van Alystyne of William & Mary. Plus a host of recognized professors, who will probably someday be the big names: Eugene Volokh of UCLA, Glenn Reynolds of U. of Tenn., and others.
In 1974, I doubt anyone teaching con law gave a hoot about the 2nd Amendment, and to the extent they did, just assumed it meant something about the National Guard. Thirty years later, all the big names in the field were endorsing an individual rights view. I can't think of any con law issue that turned around the way this one has.
MW: Can you explain to our readers why it is important that citizens should have the right to bear arms?
DH:In the movie I have several prof. discuss this. The major values of the right to arms, as they lay it out, are:
MW: How long did it take to make your movie and at what audience did you aim this film?
DH: It took just under four years to create. I started filming in January 2003, and brought the film out in December 2006. A lot of the documentaries you see on TV are raced out like sitcoms. You get a theme, find 1-2-3 people to speak about it, fly them to a studio, buy stock footage, and roll.
I had a dozen law professors to film, plus quite a few other persons, all too busy to come to a studio (and me with no budget to fly them around). I wanted to include some important original documents, and had to find them in the Library of Congress (they include, for instance, original accounts of debates in Parliament in 1688, and newspaper articles from 1789).
I aimed it at several audiences:
MW: Your documentary tells the story through interviews with professors of constitutional law, historians and legal experts. It is filled with noteworthy historical documents, some of which have never been filmed.
Of the several professors of constitutional law in your film is their overall political persuasion liberal or conservative? How significant are their credentials?
DH: The law profs in the film are almost all liberals, often very strongly liberal. I can think of only one exception, Glenn Reynolds, who tends toward libertarian conservative (which is largely liberal). I thought that nice -- this is not a partisan issue.
Actually, two of the law profs were civil rights workers in the 1960s, and they talk about how the civil rights workers were almost universally armed. One had to use his gun twice to ward off the Klan.
MW: Your documentary has a showcase segment on the 14th amendment, which was passed in 1868. How critical is the 14th amendment to understanding the right to bear arms?DH:
I find that amendment fascinating, and very little known, which is why I give it so big a segment of the film.
A brief history:
The original national bill of rights did not apply to the States, only to the federal government. Early states oppressed the right to speech whenever they wanted, and some actually had established churches into the 1830s. The bill of rights was part of the US constitution and only bound the US.
During the Civil War, around 200,000 black Americans served in the Union forces, a majority of them former slaves. After the war they went home with their muskets and freedom.
The former confederate states were of course appalled. Hundreds of thousands of black Americans, with muskets, freedom, and expectations of equality! When the Klan started out, they fought back.
The states started passing Black Codes, which forbade blacks to own guns.
Congress was shocked -- Union vets were being disarmed of the very muskets they had carried in support of the government, and in some states the seized arms were being handed over to the Klan!
It passed civil rights legislation--one piece of which provided that all rights, "including the constitutional right to bear arms," would be guaranteed regardless of race. Then it passed the 14th Amendment that forbade states to deprive anyone of the privileges and immunities of US citizenship.
The 14th Amendment represents the specific contribution of the black experience to the constitution and to our rights. To my mind, it's at least as important as the original bill of rights. I doubt we'd like to live in a state that could oppress freedom of speech at will, or establish a church with our tax money and compel us to attend it!
MW: How does the academic literature available today compare to the scholastic material offered when you began?
DH: A HUGE turnaround. When I started in 1974, there were, as I recall, four law review articles in print over the last 20 years. One was worth reading and the other three were negligible.
Today by some counts there are over a hundred law review articles on the subject, of which about 95% endorse an individual rights view. And we are talking big names in the field, and the big name reviews. It's a complete reversal.
MW: What is happening with the appellate courts with this issue? Are they lagging behind, and if so, why?
DH: Yes, far behind. What happened was that the Supreme Court in 1939 came down with a rather muddled decision, Miller v. US, that seemed to say that there was an individual right, although it was limited to military or militia suitable guns. It involved a sawed-off shotgun, and the Supreme Court said the trial court had to take evidence on whether this was militia-suitable. Unfortunately the owner, a bank robber by trade, was murdered before the trial court could hold a hearing.
In the 1940s the US courts of appeals, right below the Supreme Court, read this and resisted. Basically, they argued that under this standard almost all gun control would be suspect that they were not going to take this reading. So they essentially invented the "collective rights" claim that the 2nd Amendment only protects a state's right to have a national guard. (That makes no sense at all, by the way: the NG is a reserve component of the national military, and the federal government can do with it as it pleases, so there is no state right there at all).
Since the academic turnaround, though, courts of appeals have the convenient way out -- they just cite their old cases, say they are binding precedent, and they don't have to change.
Some courts of appeals don't have precedent on the issue, and those have taken the individual rights view. The 5th Circuit in Emerson, and recently the DC Circuit in Parker.
MW: Do you think that the Supreme Court will look at the issue and if so, when?
DH: I'd give better than even odds that the Supreme Court will take the appeal from Parker, which would mean a decision next Term (which will start in October of this year).
The Supremes can take an appeal or refuse to, at their sole discretion, and without giving a reason. But the biggest reason for granting the appeal is a split among the courts of appeals on a major issue, and this is one. You have an individual right recognized in the DC Circuit and the 5th Circuit (which covers Texas, Louisiana, and I forget what else), and no right at all recognized in most of the other Circuits. The Supremes should settle it.
MW: You have gone from writing best selling books about Michael Moore to doing documentaries on the Second Amendment. What will be your next project?
DH: That I don't know! (Grin). I think it will be a film rather than a book. I'm toying with either (1) exploring the history of the gun and antigun movements since 1960 or (2) doing a film on illegal immigration. But I need a rest, first!
MW: David, I want to thank you for your participation in this interview. You have stepped into the public eye with your important documentary and your best selling books. I highly recommend to our readers your documentary, In Search of The Second Amendment, as well as your books.
Are there any other final points or issues that you would like to mention?
DH: Just that when I started out in this, four years ago, I had no blooming idea it would take four years, or how much work it would be!
CONSTITUTION OF THE UNITED STATES OF AMERICA
A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Please check out these sites for further information on Mr. Hardy and his work.michaelwestfall.tripod.com