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Old November 5, 2009, 01:28 PM   #1
Bartholomew Roberts
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Dennis Hennigan, the brains of the Brady Bunch?

I just read an interesting article by Dave Kopel where he reviews the latest anti-gun books from Dennis Hennigan (Brady) and Josh Horowitz (VPC).
http://davekopel.org/2A/Mags/Gun-Banner-Books.pdf

In the article, he points out that Hennigan was one of the first on the anti-gun side to try and re-frame the collective rights argument into a very, very, very narrow; but individual rights interpretation and that he started the scholarship for this in the 1990s.

Given that the dissenting Justices of the Heller Court completely discounted the collective rights theory and did in fact adopt the "narrow individual rights" theory (which had the same result as the collective rights theory), it would suggest that Dennis Hennigan is somebody to keep an eye on.

For one, I would never have dreamed in the 1990s amidst the AWB, Brady Bill, Lautenberg, FFLs being pushed out of business, etc. that the soundness of the collective rights theory might be challenged successfully and how an individual right could be read so narrowly as to destroy the right entirely. Hennigan apparently not only saw that possible threat lurking in the midst of overwhelming success, he started developing the groundwork that the Heller dissent was based on.

For that reason, Kopel suggests it is instructive to look at what arguments Hennigan advances and what arguments he has abandoned in his attempts to restrict the Second Amendment.
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Old November 5, 2009, 05:59 PM   #2
Don Gwinn
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That's actually a fascinating idea. Hmm.
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Old November 5, 2009, 06:32 PM   #3
Al Norris
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Bart, in Volume 56, Issue #5 of the UCLA law review, is an article by Dennis A. Henigan, entitled, The Heller Paradox. Abstract follows:
Quote:
In this Article, I argue that the Heller majority, in discovering a new Second Amendment right to possess guns for personal self-defense, engaged in an unprincipled abuse of judicial power in pursuit of an ideological objective. The ideological nature of Justice Scalia’s opinion is revealed in his inconsistent brand of textualism, in which Scalia’s own longtime insistence on the importance of context is cast aside as he interprets “the right of the people to keep and bear Arms” by divorcing it from its particular context in the Second Amendment. The majority’s ideological approach is further revealed by Scalia’s selective manipulation of the relevant historical record, particularly his dismissal of key elements of the Amendment’s legislative history, misleading account of analogous state right-to-bear-arms guarantees, and misunderstanding of the “well regulated Militia.” I find the majority opinion a paradox. Although its interpretation of the Second Amendment is driven by ideology, the opinion nevertheless is unlikely to pose a substantial constitutional threat to gun regulation and may actually weaken the Second Amendment as an argument against the adoption of new gun control laws. Finally, Heller, by taking a general gun ban “off the table” as a policy option, may eventually weaken the gun lobby’s use of the slippery slope argument to frame the gun control debate in cultural terms, allowing a greater focus on the public safety benefits of specific reforms designed to reduce access to guns by dangerous persons.
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Old November 5, 2009, 06:41 PM   #4
Tom Servo
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Quote:
For that reason, Kopel suggests it is instructive to look at what arguments Hennigan advances and what arguments he has abandoned in his attempts to restrict the Second Amendment.
They're aiming at a moving target. They have to adapt. I've antis do so in the middle of a debate when I've had them on the ropes.

The atmosphere started shifting ever so slightly in the 1990's. We all had our moments, but for me, it was Clayton Cramer's Racist Roots of Gun Control. I could show an academic that there was viable, thorough historical research to prove my claims.

They still didn't want to give ground, and they were fundamentally incapable of saying, "wow, you've given me food for thought." Instead, they'd refine or redirect their arguments.

That said, a year before Heller, the Brady/VPC axis was largely sticking to the "collective rights" argument. When Heller started gaining steam and it looked as if "collective rights" was going the way of the Dodo and Huey Lewis, they started trying to tailor the individual right as narrowly as possible.

I received one email from them (yes, I'm on their list) the week after the decision in which they claimed victory, citing Scalia's reticence to strike down all gun-control laws. Something about a victory for "commonsense legislation."

At this point, they're on the defensive, but it's important to remember that they still have some serious firepower among the academic community.
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