Book Review

In the preface to Origins of the Bill of Rights, a volume in a new Contemporary Law Series published by Yale University Press, Leonard Levy defines his task as an "attempt to be systematic and comprehensive concerning the origins of the Bill of Rights" (ix). The book contains two chapters devoted to the First Amendment. Individual chapters are devoted to the Second, Fourth, Eighth, and Ninth Amendments. The right of trial by jury is given even more extensive coverage. The Third and Tenth Amendments are largely neglected. In place of these two provisions of the Bill of Rights, Levy substitutes a chapter on Habeas Corpus and Bills of Attainder, aspects of the unamended Constitution that afforded protection for individual liberty. Given that his stated intention is to provide a "systematic and comprehensive" account, Levy's book ignores a fifth of the Bill of Rights. Even more problematic is his failure to grapple with the hundreds of books and articles published over the last thirty years on this topic. Levy confesses in his preface that he "wrote this book alone, contracting no debts to anyone" (x). Since Yale University Press has chosen to publish the work without any scholarly apparatus, it is impossible to determine what Levy has or has not consulted. A brief bibliography of a dozen items is included, but most of the books are more than thirty years old and no articles are mentioned. The absence of an extensive bibliography in a book without any notes is particularly frustrating.	1
For those unfamiliar with his earlier scholarship, the Origins of the Bill of Rights provides a concise and lively introduction to Levy's distinctive and controversial approach to constitutional history. Individuals familiar with Levy's earlier scholarship are apt to be disappointed that he has not made any effort to grapple with criticism of his work or incorporate more than three decades of scholarship on the Constitution. This failing is most evident in Levy's treatment of the Anti-Federalists. In an early chapter, "Why We Have a Bill of Rights," Levy claims that Anti-Federalists were primarily devoted to states' rights, not civil rights. This argument has been central to Levy's scholarship for more than thirty years. Levy does not address the large body of scholarship on Anti-Federalism that has emerged in the decades since he first made this claim. Levy's approach to Anti-Federalism runs counter to the dominant trends of recent historiography. Most historians would now concede that Anti-Federalists were not monolithic and that most opponents of the Constitution were genuinely concerned about how to protect a distinctly eighteenth-century conception of liberty. One of the most serious problems with Levy's volume is that he never adequately contextualizes the meaning of liberty.	2
The one aspect of the Bill of Rights that Levy addresses in this volume that he ignored in earlier work is the Second Amendment. Levy positions himself midway between those who argue that the right was an expansive individual right and those who argue that it was a collective right tied to participation in the militia. Although Levy maintains that Anti-Federalists were proponents of states rights, on the issue of the right to bear arms, he appears to reverse himself. Anti-Federalists, he argues, were committed to protecting an individual right to bear arms. The tension between these two seemingly contradictory claims is never addressed.	3
Levy's discussion of the Second Amendment also contains a number of serious historical errors that render his conclusions suspect. Recent historical scholarship has challenged the myth of widespread gun ownership in early America. Levy appears to be unaware of this scholarship. He also draws heavily on evidence from Pennsylvania to support his claim that the right to bear arms was understood to be an individual right. Since Pennsylvania did not have a militia, Levy argues, its affirmation of such a right had to be an individual one. Apparently, Levy missed the clause in the Pennsylvania Constitution that prohibited plural office holding, except for officers in the militia. Levy also appears to be unaware of the state's Test Acts that empowered militia officers to disarm citizens who refused to take a loyalty oath to the state.	4
The Origins of the Bill of Rights is neither comprehensive nor systematic in its treatment of the history or historiography of the first ten Amendments to the Constitution. Even more disturbing is the fact that Levy has introduced a number of serious errors into the debate over the meaning of the Second Amendment. The inclusion of this work in a series devoted to contemporary legal issues is itself puzzling and may explain why Levy often abandons his historical argument to lecture the reader about contemporary constitutional issues. Yale University Press ought to insist that future titles in this series include proper scholarly annotation and up-to-date bibliographies.	5
Saul Cornell Ohio State University

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