The Smallest Minority

Not surprising. We knew this was coming. (PDF file.) Give me a couple of days and maybe I’ll fisk it. Now the question is whether SCOTUS will grant certiorari.

There was an interesting online “debate” held on the case over at The Federalist Society recently. The parties involved were:

Ohio State professor Saul Cornell, University of Tennessee Law professor Glenn Reynolds, Legal Director of the Brady Center’s Campaign to Stop Gun Violence, Dennis Henigan, Executive Director of the Educational Fund to Stop Gun Violence, Joshua Horwitz, and lawyers for the plantiffs in Parker, Alan Gura (Gura & Possessky, PLLC.), Bob Levy (Cato), and Clark Neily (the Institute for Justice)

It was an interesting read, especially when Glenn Reynolds echoed my position:

I’m going to go out on a limb here and predict that the Supreme Court will deny certiorari on this case. I think that’s likely because of the difficult position the Court would be placed in if it failed to find an individual right to arms under the Second Amendment. As Prof. Mike O’Shea wrote Concurring Opinions : How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal. Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker . . . That’s a comparison between the Court’s handling of the enumerated rights claim at issue in Parker, and its demonstrated willingness to embrace even non-enumerated individual rights that are congenial to the political left, in cases like Roe and Lawrence. “So the Constitution says Roe, but it doesn’t say I have the right to keep a gun to defend my home, huh?” The Court’s jurisprudence of unenumerated rights (with which I’m largely in agreement, by the way) would make it politically very difficult for the Court to eviscerate a clearly enumerated right to which many Americans attach great importance. At the same time, I don’t think the Court is willing to affirm in Parker. If I’m right, a denial of certioriari is the only way for the Court to avoid a very difficult situation.

I said as much back in May.

But my absolute favorite part of the debate was the last post, where Gura, Levy, and Neily come down with both feet on Professor Cornell for living in his Jabberwocky world:

This debate has mostly been conducted on a high level. Regrettably, Saul Cornell’s final post has stooped to ad hominem attacks, barefaced attempts to promote Cornell’s book, and reliance on a quote for which Cornell inexplicably provides no source. Let’s focus on the strange quote – the only part of Cornell’s post that isn’t personally offensive or transparently self-serving. After we repeatedly pressed Cornell to identify a single contemporaneous source for the militia view of the Second Amendment, he produced what he trumpets as “a good illustration of how Americans in the Founding era viewed the right.” Essentially, the quote states that only “the use of arms in common defense” was constitutionally protected; other purposes, such as self-defense, were subject to interdiction by the state legislature. Was this the declaration of Madison, Hamilton, or another luminary among the Framers? Cornell didn’t say. Well, we checked. The quote is from the estimable [hold your hat] Scribble Scrabble, a newspaper essayist. Was this profound thinker published in a scholarly journal? Not quite: It was the Cumberland Gazette, a newspaper in Portland, Maine. Was Scribble Scrabble opining on the U.S. Constitution? No, he was writing about a provision in the Massachusetts state constitution. Moreover, the article appeared five years before the Second Amendment was ratified. Why has Cornell quoted this bizarre source, without citation, including its deceptive reference to “The Bill of Rights,” but no mention that the provision in question was from the Massachusetts Bill of Rights? Because he could not respond any better to our challenge: Name “a single 18th century voice explaining how the Second Amendment right is to be read collectively.” Suppose, however, we accept Scribble Scrabble’s analysis, as if it applied to the federal Constitution. The notion that the legislature may freely “interdict” citizens’ ability to own guns cannot be reconciled with any clear-headed conception of “the right of the people.” Indeed, one might also assert that “the people” enjoy a right to own pens and pencils “till the legislature shall think fit to interdict.” After all, the right to own writing instruments is implicit, but not explicitly recognized, in the First Amendment. Of course, every serious-minded person rejects interdiction of pens and pencils, even those that are ultimately used for something other than free speech or a free press. Those of us on the pro-freedom side reject interdiction of guns as well. The burden of persuasion for treating guns differently than writing instruments clearly lies with those who would make that distinction. Our opponents in this debate offered precious little beyond Scribble Scrabble.

That, friends, is a professional bitch-slap.