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:
1. At the individual level, Americans use firearms in self-defense about 2.5 million times a year. That's based on Gary Kleck's survey of thousands of Americans. His methodology was so impressive that even criminologists who detest guns praised it. Kleck further estimated that about 400,000 per year believe they saved a life. He notes that a survey can only get opinion, not hard fact. Maybe a lot of these were wrong. But even if 90% were wrong, that would still mean 40,000 lives saved, which is far more than lives taken by criminals or suicides using guns.
2. The government has no legal duty to protect you. That's illustrated by a court case, Warren v. DC, when women called 911 over a break-in, and the 911 operator just neglected to send a dispatch to police, for reasons never explained. They were raped, beaten and sodomized for 48 hours. The court threw out their suit against DC, holding that the government has no legal duty to protect.
3. Several prof’s argue for an international right to arms. It's the best way to prevent genocide. No armed populace has even been victimized by it. Maybe it's possible to wipe out an armed populace, but it's dangerous enough to where in human history no one has tried.
4. The protection of a democratic republic, which is what the Framers were looking at. The people need not be so well armed as to actually overthrow a tyranny. They just need to be well enough armed to make establishing one a risky and costly venture. The Framers wanted the ballot box backed up by the cartridge box.
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:
1. People who are already activists. These are the ones who will get the message to the others.
2. People who aren't activists, but are open to persuasion. I think these are the most critical ones. The activists can use the film to win these over. Even if a person isn't that concerned about the issue, I think after watching the DVD they will at least agree that the right to arms is important and should be protected.
3. I believe the 14th Amendment issue will particularly appeal to minorities, a part of the population that the gun movement has largely overlooked. And the self-defense segments are covered by women, because that's esp. important to them.
He has an interesting understanding of the 14th Amendment, the original Bill of Rights, and establishment:
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!
The film's website: IN SEARCH OF THE SECOND AMENDMENT - The Documentary
Truth about Bowling for Columbine
David Hardy and the Second amendment
So You Think You Know the Second Amendment
wiki for the movie, for Mr. Hardy
Trailer:
15 meg trailer "In Search of the Second Amendment"
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