David T. Hardy

Bio: David T. Hardy is an academic researcher. The author has contributed to research in topics: Supreme court & Bill of rights. The author has an hindex of 3, co-authored 9 publications receiving 33 citations.

The Second Amendment and the historiography of the Bill of Rights

Abstract: That there is controversy surrounding the interpretation of the second amendment, or any provision of the Bill of Rights, is hardly surprising. While the disputes relating to the first, fourth and remaining amendments focus upon their detailed application, the conflict over the second amendment concerns the question of its very subject matter. One school of thought contends that the second amendment protects a collective right, a narrow guarantee of a state right to maintain organized reserve military units. This interpretation emphasized the phrase "A well regulated militia being necessary to a free state," and maintains that the subsequent recognition of the people's right to bear arms is a mere restatement of this collective (i.e., state) right. The other school of thought contends that the amendment recognizes an individual right to possess and use arms. This interpretation emphasizes the phrase "the right of the people to keep and bear arms shall not be infringed," and maintains that the preceding description of the militia (i.e., all individuals capable of arms bearing) is a mere explanation of one objective of this guarantee. The works of neither school entertain the possibility that an "either/or" test may be a gross oversimplification of what are in fact two different sets of constitutional priorities.

Michael Moore Is a Big Fat Stupid White Man

Abstract: "MICHAEL Moore Is a Big Fat Stupid White Man." That's the title of an upcoming tome from Regan Books by Jason Clarke and David T. Hardy, the creators of two Web sites devoted to exposing the filmmaker's hypocrisy, moorelies.com and Moore exposed.com. "Moore shows the greatest disdain for that which he actually is...a very rich, pasty white American male," the authors say. Watching Moore spinning statistics in "Bowling for Columbine" and "Dude, Where's My Country?" spurred the authors to ask, "Dude, where's your integrity." The book, due in July, will expose his use of camera tricks, manipulated facts and spliced speeches.

A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America

Abstract: A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGIN OF GUN CONTROL IN AMERICA By Saul Cornell.[dagger] New York: Oxford University Press, 2006. Pp.277. $30.00 "Every thing of a controvertible nature," James Madison noted regarding his proposed Bill of Rights, "was studiously avoided."1 We may wonder what he would think of the 217 years of controversy that followed. For most provisions of the Bill of Rights, the controversies have focused upon their boundaries and limitations. What is an "unreasonable search," a "compelled" self-incrimination, an "establishment" of religion? In the case of the Second Amendment2 the dispute is far more fundamental, going to the very question of whether it has any meaningful existence. Here, the conflict has been one between variants of two viewpoints: (1) the "individual rights" view,3 which has two variants: (a) The "standard model," which sees the Second Amendment as guaranteeing a personal right on par with other Bill of Rights protections; (b) What I have termed the "hybrid" view, which sees it as guaranteeing an individual right but limited to private bearing of arms suited for military or militia use;4 and (2) the "collective rights" view which likewise has two variants: (a) The traditional "collective rights" approach, which sees the amendment as protecting only a state interest in an organized militia, i.e., National Guard units;5 and (b) What the Fifth Circuit has termed the "sophisticated" collective rights approach, which sees it as protecting individual activity but only if directly linked to organized militia missions.6 As the first view treats the Second Amendment as a meaningful restriction on legislative action, while the second treats it as fundamentally meaningless,7 the conflict is absolute. The history of the understanding of the American right to arms has followed an unusual course in which the advantage swayed back and forth between the two schools of thought. At its outset, the existence of an individual right was taken for granted by courts,8 commentators,9 and the general public10 throughout the eighteenth and nineteenth centuries. The collective rights view was first enunciated, by a state court, in 1905.11 1 In 1939, the United States Supreme Court declined to accept that approach in United States v. Miller;12 soon thereafter, however, two Circuits read Miller either as endorsing the collective rights approach13 or as setting only a threshold test that permitted them to go farther and accept such an approach.14 Most of the remaining circuits followed,15 and this reading of Miller became a matter of "received wisdom" to the point in which some decisions suggest the authors had not bothered to read Miller before interpreting it.16 Even as late as the early 1960s, Supreme Court justices and an article selected by the American Bar Foundation as the winner of its constitutional law essay competition were willing to acknowledge the essentially individual nature of the right protected by the Second Amendment, but that changed by the end of the 1960s. . . . It is fair to say that by the 1970s the collective or states' rights theory had won the day with most jurists and legal and lay commentators who opined on the issue. . . . Throughout the 1970s and 1980s, expressed opinion on the part of the elite bar, the bench, and the legal academy was firmly on the side of those who denied the existence of an individual right to arms.17 The tide was, however, changing once again. When first I published on the subject in 1 974, 18 there were but a few scholarly treatments in print and none of any particular depth.19 Over the next decade, scholarship in the field expanded, largely as a result of the efforts of Stephen Halbrook, the late David Caplan, and Joyce Malcolm.20 In 1983, Don Kates published a lengthy breakthrough article in the Michigan Law Review.21 Thereafter, scholarly treatment of the individual rights approach grew exponentially. …

Agnotology: Ignorance and Absence or Towards a Sociology of Things That Aren’t There

Abstract: The study of ignorance, or agnotology, has many similarities with studies of absence. This paper outlines a framework for agnotology which is shaped by interdisciplinary studies of both ignorance and absence, and identifies properties such as chronicity, granularity, scale, intentionality, and ontology in relation to epistemology as useful for studying ignorance. These properties can be used to compare various case studies. While not all problems of ignorance are problems of absent knowledge, those that are can gain by an examination of the literatures on absence and the concept of the privative. The lack of symmetry in explanation and representation are methodological challenges to studying ignorances and absences.

Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

The Second Amendment : Toward an Afro-Americanist Reconsideration

Abstract: Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African-American history. With the exception of Native Americans, no people in American history have been more influenced by violence than blacks. Private and public violence maintained slavery. The nation's most destructive conflict ended the "peculiar institution." That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence and abetted by Supreme Court sanction Jim Crow was sustained by private violence, often with public assistance. If today the memories of past interracial violence are beginning to fade, they are being quickly replaced by the frightening phenomenon of black-on-black violence, making life all too precarious for poor blacks in inner city neighborhoods. Questions raised by the Second Amendment, particularly those concerning self-defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection, thus take on a peculiar urgency in light of the modern Afro-American experience.

Thomas Jefferson's Machiavellian Political Science

Abstract: On the face of it, there would seem to be little evidence suggesting that the political science of Thomas Jefferson owed much, if anything, to the speculation of Niccolo Machiavelli. The Virginian appears to have mentioned the Florentine by name but once, and he did so in a manner conveying his disdain for the author of The Prince. And yet, as I try to show in this article, Jefferson's commitment to limited government, his advocacy of a politics of distrust, his eager embrace of a species of populism, his ultimate understanding of the executive power, and the intention guiding the comprehensive legislative program that he devised for Virginia make sense only when understood in terms of the new science of republican politics articulated by Machiavelli in his Discourses on Livy.

Reframing practices in moral conflict: interaction problems in the negotiation standoff at Waco

Abstract: This study is an analysis of several telephone conversations between FBI negotiators and David Koresh during the 51-day FBI—Branch Davidian standoff outside Waco, Texas, in 1993. The analysis shows how different reframing practices reveal interactional troubles the negotiators faced in dealing with the incompatibility of their legal frame for the situation and the Davidians' religious one. These practices shed new light on reframing in crisis negotiation steeped in moral conflict, describing it as a problematic conversational practice rather than a prescribed path to resolution.