Month: February 2005

Here is his reply to my earlier piece, complete and unedited:

Thanks for the e-mail.

Here is my quick response to the points raised on the blog. Scholarship and the Courts for the entire 20th century adopted the collective rights theory. The Senate Committee reflects the political clout of the gun rights movement, not the state of the law or scholarship in 1982. Quoting dicta from the most infamous case in American history is hardly a strong case for an individual rights consensus in the 19th century. The fact that Tribe changed his mind before the most recent scholarship debunking the standard model appeared does not tell us much. Tribe is hardly an expert on early American history. The dissent in the 9th Circuit was not the majority view, and Kozinski is a bit odd to say the least. I have never denied the existence of an individual rights tradition, but I think the evidence strongly suggests that it was weak at the Founding, got stronger over the 19th century, but never supplanted the two alternative models– the collective rights view, and what I call the civic rights view. Of course, since I am not an originalist none of this really matters. Moreover, with 240 million guns in America and without an individual right written into the 2nd Amendment why all the fuss. I believe the issue is very interesting, but at the end of the day it really hardly matters in terms of the politics and public policy debate. Guns are part of the fabric of American culture and are not going away so the question is can we take a few common sense steps to reduce gun violence or not. The slippery slope arguments have it backwards. What we have is an upward struggle to achieve modest regulations.

Hope this helps

Saul Cornell
Director, Second Amendment Research Center, John Glenn Institute
Associate Professor Of History
Fellow Law, Policy, and Social Science
Moritz College of Law

Oh, indeed, it helps.

I’m glad that you admit up front that you are not an originalist. It is obvious from your writing, but stating it explicitly is certainly helpful. For those unfamiliar with the term, an “originalist” is one who believes that the Constitution is not a “living document,” and that interpretation of it should be based on the original understanding of the text as it was proposed and ratified. Justice Antonin Scalia is an originalist, for instance. Therefore if the Constitution is found to be outdated in any of its parts, it should be altered by amendment, rather than by mere legislation or judicial interpretation. In other words, even if the legislature should pass a law that appears to be a good idea, but is in violation of the Constitution as originally understood by those who ratified it, it should be the duty of the Judiciary to strike such law down as unconstitutional until such time as the Constitution has been amended to correct the error. Further, the power of the Judiciary is restricted to striking down unconstitutional law, and not creating law. That power is left to the legislative and executive branches.

There’s good reason for this. The Constitution is a mechanism designed to restrict and constrain the power of the federal government. The tripartite system is engineered to ensure that expansion of power of any one branch can be checked by the power of either other branch, and that even two branches together can be restrained by the remaining one. The Founders knew the dangers of democratic forms of government, and did their best to build a corruption-resistant, but robust and functional structure. However, we humans are persistent creatures, and given time, even the best structures can be destroyed. And we’ve had lots of time.

You are not quite correct in your statement that “Scholarship and the Courts for the entire 20th century adopted the collective rights theory” as the Committee of the Judiciary report indicates, since it was published in 1982. Sanford Levinson’s Yale Law paper The Embarrassing Second Amendment was published in 1989. The gun control scholarship was crumbling towards the end of the century. The U.S. v Emerson decision was published on October 16, 2001.

You pooh-pooh the Senate report as “reflect(ing) the clout of the gun rights movement,” but I would suggest that the nearly 120 years of gun control prior to that report reflected the clout of a combination of racism, growing statism, and the exploitation of what Stalin termed “useful idiots.” The gun rights movement was growing during that period precisely because of the infringements resulting from this triumvirate.

It is good that you apparently acknowledge, however, that prior to the 20^th century, neither scholarship nor the courts held any such belief strongly, because it is there that your rejection of originalism becomes a prerequisite for accomplishing your current goals without actually having to attempt the “slow and uncertain process of amending the Constitution.”

I’ve never understoond the rejection of originalism in the pursuit of a single-minded goal. Alan Dershowitz, Harvard Law School’s Felix Frankfurter Professor of Law is quoted as saying:

Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right or that it’s too much of a public safety hazard, don’t see the danger in the big picture. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.”

Professor Levinson, in The Embarrassing Second Amendment wrote:

(I)f one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights? As Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights were always (or even most of the time) clearly costless to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. The very fact that there are often significant costs–criminals going free, oppressed groups having to hear viciously racist speech and so on–helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments. Most often, one finds them embracing versions of textual, historical, or doctrinal argument that dismiss as almost crass and vulgar any insistence that times might have changed and made too “expensive” the continued adherence to a given view. “Cost-benefit” analysis, rightly or wrongly, has come to be viewed as a “conservative” weapon to attack liberal rights. Yet one finds that the tables are strikingly turned when the Second Amendment comes into play. Here it is “conservatives” who argue in effect that social costs are irrelevant and “liberals” who argue for a notion of the “living Constitution” and “changed circumstances” that would have the practical consequence of removing any real bite from the Second Amendment.

As Fred Donaldson of Austin, Texas wrote, commenting on those who defended the Supreme Court’s decision upholding flag-burning as compelled by a proper (and decidedly non-prudential) understanding of the First Amendment, “[I]t seems inconsistent for [defenders of the decision] to scream so loudly” at the prospect of limiting the protection given expression “while you smile complacently at the Second torn and bleeding. If the Second Amendment is not worth the paper it is written on, what price the First?” The fact that Mr. Donaldson is an ordinary citizen rather than an eminent law professor does not make his question any less pointed or its answer less difficult.

Being an “ordinary citizen” myself, I find myself in strong agreement with him. Another “ordinary citizen,” Bill Whittle, wrote in his essay Freedom:

We as a nation suffer an appalling number of handgun-related deaths each year — perhaps 11,000 of them. The number is not important; each is a personal tragedy and those lives can never be replaced.

If we attempt to reduce this horrible number by banning handguns, we are taking away the property of a person who has broken no laws by a government whose legitimacy is determined by a document that specifically allows that property, namely guns.

Destroy that trust by punishing the innocent, by pulling a plank from the Bill of Rights, and the contract between the government and the people falls apart. Once the Second Amendment goes, the First will soon follow, because if some unelected elite determines that the people can’t be trusted with dangerous guns then it’s just a matter of time until they decide they can’t be trusted with dangerous ideas, either. Dangerous ideas have killed many millions more people than dangerous handguns – listen to the voices from the Gulag, the death camps, and all the blood-soaked killing fields through history.

You may object that you do not wish to ban handguns, that you only pursue “a few common sense steps.” Perhaps so. But you also asked, “why all the fuss”? And you said, “I believe the issue is very interesting, but at the end of the day it really hardly matters in terms of the politics and public policy debate.”

This is what all the fuss is about, at least from my perspective. Alan Dershowitz sees it. Sanford Levinson sees it. Fred Donaldson, Bill Whittle and I see it. That’s what all the fuss is about, and it matters a great deal.

You, an historian, have taken it upon yourself to distort history – something that you yourself claim is unacceptable. You claim that the Justice department’s recognition of the “standard model” of the Second Amendment is somehow “well beyond” a “living document” re-interpretation. I’m sorry, Professor, but if you actually believe that you’re delusional, and if you know better you’re a bald-faced liar. I honestly cannot tell which.

You object that Laurence Tribe is “hardly an expert on American history,” yet he doesn’t have to be – you gloss right over the fact that he’s an acknowledged expert on Constitutional law. You protest that he “changed his mind before the most recent scholarship debunking the standard model appeared.” The simple answer to that? ASK HIM. And what scholarship would that be? Michael Bellisiles’ thoroughly discredited book Arming America? Or your upcoming book Armed in the Holy Cause of Liberty: Guns and the American Constitution?

You object to my citation of Dred Scott because it’s “the most infamous case in American history” – but it was infamous because it denied fundamental enumerated civil rights to blacks, not because Chief Justice Taney didn’t know and accurately list what those rights WERE.

You protest that Justice Kozinski is “a bit odd to say the least.” Really? Why? Because he’s an originalist sitting on the 9^th Circuit? Because when the Supreme Court overturns a 9^th Circuit decision, Kozinski is almost always one of the dissenters to the original decision? Because Kozinski writes clearly and eloquently enough that “ordinary people” can understand him? You object to my citing Justice Kozinski because his opinions are in the minority, but you don’t note that in the case I cite he wasn’t alone. Justices Pregerson, Gould, Kleinfeld, O’Scannlain and Nelson also dissented. Are they also “a bit odd”? Justice Kleinfeld’s slightly drier dissent was joined by Kozinski, O’Scannlain, and Nelson. He said:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit’s opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.

The panel decision purports to undertake historical analysis. Historical context has its uses in understanding the context and purposes of any law, constitutional or legislative, but like legislative history, the use of history is subject to abuse. Where the historical scholarship is partial and tendentious, relying on it becomes like relying on legislative history: “entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”

Much of the panel decision purports to be an attempt to figure out what the word “militia” means in the Second Amendment. But the panel’s failure to cite the contemporaneous implementing statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the “militia” consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect. Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller, held that the term “militia” in the Second Amendment meant, and means, “all males physically capable of acting in concert for the common defense.” We are an inferior court, bound by this holding of the Supreme Court.

The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims “keep and bear” means the same thing as “bear,” which itself means only to carry arms as part of a military unit.”

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden.

This decision was published on May 6, 2003. Has the scholarship changed that much in less than two years? Has there been another law review article that claims that “keep and bear arms” means only “to carry arms in military service” since then?

Justice Kleinfeld also, like Professors Dershowitz and Levinson, Mr. Donaldson, Mr. Whittle and myself, recognizes that what the 9^th Circuit has done is strip one of the ten amendments from the Bill of Rights by judicial fiat. By “judicial activism.” I happen to live in the 9^th Circuit. I don’t like being told that I have no individual right to arms when I can read the history, both legal and legislative, and know better.

You protest that the “slippery slope” arguers “have it backwards,” that with 280 million guns in America they aren’t going to go away. I’m sorry, but we’ve seen what eighty years of progressive “common sense gun control” has done to England. That is the “slippery slope,” and they seem to be gaining significant speed down it.

We’ve read the literature of the gun control groups. Their entire existence is based on the belief that “the number of guns” in America is responsible for the level of carnage. How else do they expect to reduce that carnage without reducing “the number of guns”? And who can they take those guns from? Only the law-abiding. And how will they accomplish this? The same way it was done in England – by passing incrementally more restrictive, obnoxious, expensive, and irritating laws on acquisition, possession, use, and storage. Then, because none of these laws will result in traceable improvements in gun crime levels, (I refer you to the recent National Academy of Science report on the efficacy of gun control laws in actually, you know, controlling gun violence. Here’s a hint – no studies done to date show that any “gun control” laws have been effective in reducing gun violence.) we will be told that “we need to plug the loopholes” and stronger laws are needed. Laws like licensing and registration, and inspection for “safe storage” compliance. Laws, I’ll remind you, that criminals will simply ignore or be immune to.

You state that all you want is to “take a few common sense steps to reduce gun violence.” Unfortunately, I cannot trust you. You have demonstrated either a willingness to lie, or an ability to delude yourself into believing what is obviously not true. Further, you’ve demonstrated a willing activism to convince others of your delusion or your lies in the furtherance of your ends. You may pat yourself on the back for your actions because “its all in a good cause,” but what you are participating in is the cultivation of that weed in our Constitutional garden, in pulling that plank from the Bill of Rights, with no concern for the result of that. It’s alright by you, because you’re not an originalist, so “none of this really matters.”

But it matters to me and people like me, and that is why there is a “big fuss.”

I hope this helps.

UPDATE, 2/7: As of this writing, Professor Cornell has not replied to this piece. Nor do I expect him to, really.

Ravenwood commented on, well, actually ripped on this op-ed column on the PittsburgLive.com site by “associate professor of history and director of the Second Amendment Research Center at the John Glenn Institute at Ohio State University” Mr. Saul Cornell. Ravenwood reveals that the “Second Amendment Research Center” is funded by the Joyce Foundation, a group dedicated to “meaningful reforms” and providing “a model for gun policy nationwide.” Denise of The Ten Ring also waxed eloquent on the topic.

Now it’s my turn.

Taking a bite out of the 2nd

By Saul Cornell
Sunday, January 30, 2005

The Department of Justice decided to revise the Second Amendment.

Really? I thought they had decided to make a plain statement of meaning, not a revision. I haven’t noticed any change in the wording as it is archived. As I see it, the Dept. of Justice has merely done a scholarly analysis of the meaning of the Second Amendment and concluded what the 1982 Report of the Subcommittee on the Constitution of the Committee of the Judiciary of the United States Senate said:

The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such an “individual rights” interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself.

It would seem the Dept. of Justice’s report is hardly a revision. But that’s how Prof. Cornell sees it:

It has produced a 100-page memo designed to give activist judges a historical pretext for striking down existing gun laws.

Now THIS is RICH! Given the fact that “activist judges” are responsible for the current state of judicial affairs concerning the Second Amendment!

Up until just prior to the Civil War, the Supreme Court held that the Second Amendment protected an individual right of citizens, a right outside of militia service, to “keep and carry arms wherever they went,” as I detailed in The Blog that Ate Poughkeepsie. In fact, Chief Justice Taney stated in the majority decision of Scott v. Sanford:

(Citizenship) “would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.” (My emphasis)

That’s a pretty fair listing of the “rights of the People” as protected by the Bill of Rights against infringement by government. These rights were so inviolate that the Court decided that blacks, free or not, could not be citizens because to grant them that status would thereby confer those rights – irrespective of membership in a “well regulated militia” – upon them. It was not until AFTER the Civil War that “activist judges” declared that the Second Amendment protected only against infringement of this right by Congress in U.S. v. Cruikshank, thereby violating the expressed intent of Congress and the People in the passage of the 13th and 14th Amendments because the Justices just couldn’t BEAR to see black citizens exercise their legal right to keep and bear arms.

Let’s make sure we understand each other here: “Activist judges” means judges who, as 9th Circuit Court Justice Alex Kozinski put it, “constitutionalize” their “personal preferences.” That’s what the Courts have been doing to the Second Amendment now for decades – all in the name of “public safety.” The same argument the Brady Bunch, et al. use today.

Let’s continue:

Rewriting the Bill of Rights has been pawned off as nothing more than a return to the original understanding of the amendment. Yet this revisionist interpretation has nothing to do with the original.

Reads the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The department’s revised Second Amendment contends the right of individuals to keep and carry guns shall not be infringed.

The Department of Justice has erased the preamble, which states the purpose of the amendment, to create a “well regulated Militia.” The revision goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times. In effect, Justice believes it can expunge language that it finds inconvenient and substitute language more ideologically suitable in its place.

We’re supposed to take associate Prof. Cornell’s word as an authority that this is what the Amendment really means. I find it hugely ironic that he is now claiming that what’s being done is not only a “living document” revision, but “goes well beyond” such revision. Let me quote a perhaps more competent (and less biased) authority, Laurence Tribe, Tyler Professor of Constitutional Law at Harvard and author of the text American Constitutional Law from which this quote is taken:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

Laurence Tribe is hardly a right-wing gun-nut. He was one of Al Gore’s lawyers during Bush v. Gore in 2000, and is a decided lefty. Or let me quote more fully from Justice Kozinski in his dissent to the decision to deny an en banc rehearing of Silviera v. Lockyer, which seems to take a quite opposite position to Professor Cornell:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms.

Justice Kozinski here perfectly illustrates “judicial activism” as it relates to the Second Amendment. Or how about 9th Circuit Justice Jay Gould’s dissent to the en banc rehearing of Nordyke v King?

An “individual rights” interpretation, as was recently adopted by the Fifth Circuit in United States v. Emerson, consistent with United States v. Miller, is most consistent with the text, structure, purposes,and history of the Second Amendment, as well as colonial experience and pre-adoption history. It also reflects what I consider to be the scholarly consensus that has recently developed on the question of how to best interpret the Second Amendment. We should recognize that individual citizens have a constitutional right to keep and bear arms, subject — in the same manner as all other core constitutional rights — to certain limits. Thereafter, the chips will fall where they may, and decisions in due course will clarify what is and is not constitutionally permissible regulation, and the further standards for addressing it.

These are justices sitting on the bench of the most liberal Appeals court in the nation, citing legal precedent and historical documentation that associate Professor of History Cornell claims don’t exist:

Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution.

I beg your pardon? I refer you, once again, to the Report of the Subcommittee linked above, and how about this page from UCLA law professor Eugene Volokh? Or the 5th Circuit Court of Appeals decision in U.S. v. Emerson? There are REAMS of scholarship showing that the “bearing arms” language in the Second Amendment did not restrict “the right of the People to Keep and Bear Arms” to milita service only, else Laurence Tribe would not have reached the conclusion he did.

Remember, Prof. Cornell is writing an opinion piece for a newspaper. He doesn’t have to be right, he just has to be convincing. The ill-informed who read this piece think “Hey, he’s an authority, he must be right.” That’s why his side has to keep repeating the big lies.

To continue:

Substituting the ideas of the losers for the winners turns history into a science-fiction fantasy, in which one might as well argue that the patriots lost the American Revolution, or the South won the Civil War.

Except we’re winning. The original meaning that existed after the American Revolution, the meaning that was stripped by the Courts after the Civil War, is being slowly restored.

For better or worse, the real Second Amendment links the right to bear arms with a well-regulated militia. If Americans want to change this language it will have to be by the slow and uncertain process of amending the Constitution.

And here he simply lies. The “real Second Amendment” has never been linked to militia service in the Supreme Court, and only in the lower courts by (apparently deliberate) misinterpretation of the 1939 U.S. v Miller decision. Again, quoting Justice Kozinski:

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

Yet that’s what most of the Appeals Court decisions Professor Cornell bases his worldview on have done. But he depends on the overwhelming majority of the public not understanding any of the history, legal or otherwise, and simply accepting his appeal to authority. It is the gun control side that needs to pursue the “slow and uncertain process of amending the Constitution” but it never even tries that path. Instead they try to pass unconstitutional laws, and failing that they try to legislate from the bench. Now that even that course is failing, they once again are attempting to deceive an ignorant public in order to anger and panic them. This way they can pursue the legislative angle, or possibly influence those “activist judges” who are willing to constitutionalize their personal preferences.

Professor Cornell concludes:

Distorting the past for ideological reasons is unacceptable, in the cause of either gun rights or gun control.

On this I concur fully. But I recognize that it is Professor Cornell and his ilk that have been “distorting the past for ideological reasons” for decades, and now they realize they’re losing, and they’re getting desperate.

I said previously that I started this blog to give me a place to be an advocate for individual rights – a place to voice my views and to hopefully help educate a populace that too often hasn’t been told what their rights are supposed to be under the system of government we’re supposed to be living in. This is a perfect example. Professor Cornell’s piece will reach a lot more people than my rebuttal will, but I will reach some, and so will Ravenwood, and so will The Ten Ring, and so will others. Individually and together we have a voice denied to us previously, and that voice is at least in part responsible for the fact that we are winning the war of ideas, at least on this particular battlefield. Not only that, but we’re winning because people are able to read the historical record for themselves and draw their own conclusions, no longer restricted to the opinions of “authorities” like associate professor Saul Cornell.

(Edited to add: I sent the Professor a link to this piece. His email address is [email protected]. If he responds, I’ll publish it.)

UPDATE – 2/3: Professor Cornell has responded. I’ll post the response and my reply as soon as I can. This piece will require some time, though, so be patient.

Further Update: The response is up here.