At Volokh Conspiracy, Eugene Volokh corrects some history about gun ownership: 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). (The original article, by Professor Pratheepan Gulasekaram, is here).
I read with interest “The People” of the Second Amendment: Citizenship and the Right To Bear Arms, and I agree with its conclusion that the Second Amendment should be read to protect law-abiding noncitizens as well as citizens. But it seems to me that there may be a mistake in the article’s historical assertions.
The article appears to assert that poor whites, women, and noncitizens were often legally barred from owning guns in the early years of the United States, or at least that they were subject to especially heavy gun controls. ….
Yet unfortunately, none of the sources that the article cites actually shows that early American laws barred poor whites, women, and noncitizens from owning guns. Perhaps there are such early sources. But the article does not cite them, nor do the sources that the article cites on these matters sufficiently support the article’s assertions….
Professor Volokh has more at the The Legal Workshop, here.
David Kopel piles on: Laws about gun ownership in early America (“[Professor Gulasekaram's] article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.”). Kopel follows through with some historical illustrations.
And Volokh has further thoughts here: Factual Errors Tangential to an Article’s Main Thesis.
I appreciate [Professor Gulasekaram's] point [in a response to Professor Volokh] 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.
Posted at 7:00 AM