or: “A Fisker’s Work is Never Done”
As I said in my previous piece, the gun control partisans are coming unglued. Next exhibit: Professor Saul Cornell, associate professor of history at Ohio State University, Director of the (Joyce Foundation-funded) Second Amendment Research Center of the John Glenn Institute at Ohio State, and a man with a very jabberwocky view on history, legal precedent, and the right to arms.
His latest: another op-ed, this time on the Parker v D.C. decision from last week. Yes, friends, it’s all a plot by the Vast Gunny Conspiracy.
Again, let us fisk:
Department of History,
Ohio State University
Note that he doesn’t point out his directorship of the “Second Amendment Research Center” here. He’s just a humble member of Ohio State’s History department. One would think for maximum “expert status” he’d be resting on those laurels. Perhaps Joyce Foundation funding is becoming radioactive?
The recent decision in Parker v. District of Columbia striking down the District of Columbia’s gun control law rests on a combination of bad law and even worse history. It also demonstrates the methodological weakness of originalism in its current form.
And Professor Cornell is going to cite us chapter and verse in refutation?
It is rather shocking to see a Federal Appeals Court misread established precedent in such a politically distorted fashion. The interpretation of U.S. v. Miller offered by the Appeals Court rests on a revisionist reading of the case manufactured by gun rights scholars.
Manufactured and revisionist in his “expert” opinion. Yet those gun rights scholars apparently managed to convince the foremost expert on American constitutional law, Laurence Tribe – professor of Law at Harvard, and author of the most widely used ConLaw textbook in law schools today, American Constitutional Law (3rd Edition.) In the first and second editions, Tribe relegated the 2nd Amendment to mere footnotes, but in the 3rd Edition (2000) he devotes several pages to it, concluding:
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.
This goes well beyond what the DC Appeals court found in Parker, but we’re supposed to take Cornell’s word – an historian – that these “gun rights scholars” have “manufactured” their case, not convincingly researched it and provided it for peer-review like any other legitimate scholars.
According to the revisionist reading of Miller, the Court only cared about the type of weapon at issue in the case. This reading casts aside more than seventy years of jurisprudence and is absurd.
Absurd? Then why doesn’t Professor Cornell quote the pertinent part of the decision to prove his point? I quoted it below, I’ll be more than happy to do it again:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Note that the court does not do what the 9th Circuit Court of Appeals subsequently does; it does not read this as meaning that no one not a member of the militia has any right to arms. The government’s lawyers argued that position, but the Supreme Court did not decide the case on those grounds. They decided the case on the suitability of Miller’s shotgun as militia equipment. Period. They ajudicated on the type of weapon – however much Professor Cornell wishes to deny it. And a question: What amendment passed seventy years ago that overturned the understanding of the Second Amendment in Supreme Court jurisprudence up to that time?
All of the contemporary reports of Miller in the press and legal scholarship of the day treated the case as though it simply restated the overwhelmingly scholarly and legal consensus of the day that the Second Amendment was about the militia. If there was any reason to doubt this reading, then one need only look at the New York Times the day the case was reported. Judge McReynolds prefaced the decision by noting that “We construe the amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has relation to the militia.” Clearly, the revisionist reading of Miller has no historical foundation.
Note what Justice McReynolds did not say: “We construe the amendment as having relation to the military service, and since Miller was not a member of any military organization, he had no right to possess a firearm.” “No historical foundation”? My muscular buttocks.
The use of Founding era sources in Parker is no less problematic. One of the issues discussed by the Court is the meaning of the phrase “keep and bear arms.” To support the dubious proposition that this phrase was typically used to describe both military and non-military uses of firearms, the Court turned to the Pennsylvania Anti-Federalist Dissent of the Minority. It is a remarkable version of originalism that would use a hastily drafted protest that was never copied by any other state nor emulated by any major writer during ratification as the basis for reconstructing the meaning of an important constitutional text. Indeed, the Dissenters were so far out of step with thinking within their own state that none of them won election to the First Congress that actually drafted the Bill of Rights. Indeed, the Dissent of the Minority was invoked and dismissed during the debate over the Bill of Rights as a text that symbolized the most radical Anti-Federalist demands. Madison did not even include it among various proposals he collected when he began formulating his own list of possible amendments. Yet, despite the overwhelmingly historical evidence that this text was not typical, nor ultimately influential, gun rights scholars and their allies on the DC Court of Appeals insist on using this text as though it were dispositive of the meaning of the Second Amendment. Rewriting the Second Amendment as if it were written by the Pennsylvania Minority take originalism in the direction of an alternate history science fiction fantasy.
Uh, Professor? You just completely blew off the entire discussion in Parker over who “the people” are in favor of dissing the court’s understanding of “keep and bear arms.” They show, with vigor, that “the people” in the Second Amendment are the same “people” in the First, Ninth, and Tenth Amendments. Not a collective. Individuals. And why is it that anti-gun scholars seem unable to understand the concept of the word “keep”? Even if the Second Amendment was specifically intended only for the purpose of having an armed “well-regulated militia,” what part of this portion of Miller don’t they understand?
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
(My emphasis.) In order to bear arms “supplied by themselves and of the kind in common use at the time,” wouldn’t that mean that they had to keep them, at home, like the Swiss do today?
Who is it proposing “alternate history science fiction fantasy” here?
The Parker decision contains other historical errors that have been frequently repeated in gun rights scholarship. The Court falsely asserted there are no 19th century constitutional commentaries who favored the militia based reading of the Second Amendment. This would have shocked Joseph Story, the most influential commentator of the pre-Civil War era and Benjamin Oliver, one of the most influential popular constitutional writers of the antebellum era.
Stop right there. Let’s discuss Joseph Story for a moment. Here’s what Supreme Court Justice Joseph Story said in his 1833 Commentaries on the Constitution of the United States that’s been quoted so often:
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
Here’s the entire quote in full context:
The next amendment is: “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.”
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Here Professor Cornell seems to argue that Story’s fear – an indifferent population avoiding its duty – means that the government has the power to pass laws disarming them.
Somehow I don’t think Justice Story would have gone along with that idea. Even if the populace does not subject itself to militia service, it is not a militia, according to Story, but citizens – that is, individuals – with a right to keep and bear arms that provides a check against “the usurpation and arbitrary power of rulers” which is “the palladium of liberty.”
Now, as to Benjamin Oliver, I’ve only been able to find one citation of any significant length to his take on the right to arms from his book The Rights of an American Citizen: with a Commentary on State Rights, and on the Constitution and Policy of the United States. (American Book Exchange has one copy at $275. I don’t think I’ll be adding that tome to my library any time soon.) That source is Michael Bellisiles, so you’ll forgive me if I suspect cherry picking on the part of that author, given his proven history of “selective quoting.” However, this is what Bellesiles says Oliver wrote:
As the early American political scholar Benjamin Oliver wrote in 1832, the “cowardly and disgraceful” act of carrying concealed weapons transformed what might have been a barroom brawl into a deadly encounter. The Second Amendment, which Oliver held relevant only to the militia system, offered nothing “to prevent congress or the legislatures of the different states from enacting laws to prevent citizens from always going armed.”
Bellesiles then insists that legislatures of the time were in full agreement with Oliver, passing laws against carrying weapons. Well, no. Against carrying concealed weapons. Carrying openly seems to have been accepted practice. And today states are allowed to pass laws regulating the carrying of concealed weapons. A few, like Arizona and Virginia, do not restrict (at least not by statute) the open carry of firearms to this day.
Oliver might have thought that it should be OK to restrict all carry, but the legislatures and courts of the time certainly did not.
It also would have shocked influential post Civil War commentators such as John Forrest Dillion(sic) and Joel Prentiss Bishop.
Then I’d appreciate some citations from them to that effect, with links. This is argumentum ad verecundiam – appeal to authority. Hey, I can throw names around too! How about Chief Justice Roger B. Taney and the six Supreme Court Justices that joined him in his Dred Scott decision of 1856? (At least I give a cite.)
One could go on for pages documenting the historical errors, logical missteps, and ideological distortions of the opinion in Parker.
Then I suggest you do so, because your side is going to need to flood the court with amicus briefs for the appeal.
It is too early to tell if this case will end up being reversed. If it does then Parker will have been little more than a flash in the pan. If the case is upheld than(sic) history will view Parker as the first volley in a full frontal assault on modern gun regulation.
Right. Modern gun regulation? Again I ask: What amendment got passed seventy years ago that rendered the Second Amendment null and void?
What is indisputable is that the Court’s analysis of history and precedent was driven by an activist ideology, not a genuine understanding of the original meaning of this provision of the Constitution.
That’s the topsy-turvey jabberwocky world of Saul Cornell. An attempt to perform a strict-scrutiny original-meaning analysis on the Second Amendment doesn’t find what he wants it to find, so it’s driven by “activist ideology,” but seventy years of bad precedent built upon a foundation of racism isn’t.
Sometimes I wish someone had the power to revive the Founders just so they could bitch-slap these people.
Up next: Erwin Chemerinsky’s WaPo piece A Well-Regulated Right to Bear Arms. But tomorrow. These things are too time-consuming.