I. the Standard Model Second Amendment Exposed
Charles, Patrick J., Fordham Urban Law Journal
B. Excavating the Standard Model's Poor Foundation
Perhaps the largest dilemma facing the Supreme Court as it moves forward with Second Amendment jurisprudence is separating fact from fiction. Again, for over thirty-five years Standard Model writers have succeeded in building a mythical construct that proves difficult to separate and deconstruct. What makes this task particularly complicated is the number of layers the Model is built on. One article is built upon another, and so on, even in cases where previous articles have been rebutted or shown to be historically unacceptable.
What proves even more problematic is that many of the Model's historical claims are unsupported. Often, Standard Model works seek to deduce historical meaning through hypothetical word scenarios that they claim prove "public understanding," or, if conducted properly, what historians would refer to as a combination of social and intellectual history. (92) Certainly, the way in which the public understood the Constitution is important for any historical inquiry. (93) But conducting an objective social and intellectual history requires more than parsing text and finding a favorable interpretation. (94) All historical inquiries, including that of social and intellectual history, require historical context. This means the writer must take into account "beliefs, attitudes, philosophies, prejudices, and loyalties that are not those of our day." (95) A proper social and intellectual history also requires the conducting of the most basic methodologies, such as comprehensive research, reading and incorporating the seminal accepted works on the subject (or at least distinguishing one's conclusions from said works), separating historical realities from political propaganda, pinpointing what may have intellectually or ideologically influenced the writer, and weighing the credibility of the writer's opinion with others of the same period. (96) Most Standard Model works do not meet these standardized burdens, and it remains the reason why professional historians generally do not accept these works. (97)
The repercussions that poor methodologies can have on historical objectivity and preserving our past are of particular concern to historians. (98) A lack of professional and objective norms leads to myths. As a result, history runs astray, and generations are socialized to believe historical fictions are realities. (99) Some Founding Era myths that have matriculated as a result of poor methodologies include the likes of limited immigration powers. (100) a natural rights interpretation of the Declaration of Independence, (101) and a presumption of liberty when interpreting the Constitution and Bill of Rights. (102) Each of these myths, if ever taken seriously by the Supreme Court, will not only give false perceptions of history to future generations, but will affect jurisprudence drastically as to amend the Constitution itself.
This historical burden is something that the Court bears on a day-to-day basis when weighing arguments and writing opinions, whether each Justice knows it or not. (103) Just one historical mistake by a majority can lead to countless others, especially given that the lower courts often are bound to restate the Supreme Court's historical mistakes as historical facts. (104) Thus, the Court's duty to maintain a sense of historical consciousness is not something the Justices should take lightly. (105) They must remain cognizant that any cherry-picking of historical events will have dire consequences on society at large, especially when it adopts unproven and mythical writings as historical authority. (106)
A fitting example as to how far a myth can supersede historical reality is the story of George Washington's teeth. One will never find the subject litigated in a court of law, and its history will likely never impact the outcome of a case. Still the subject as to whether Washington's teeth …
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Publication information: Article title: I. the Standard Model Second Amendment Exposed. Contributors: Charles, Patrick J. - Author. Journal title: Fordham Urban Law Journal. Volume: 39. Issue: 5 Publication date: October 2012. Page number: 1746+. © 2009 Fordham Urban Law Journal. COPYRIGHT 2012 Gale Group.
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