Well, the Christmas weekend was pretty relaxing. I didn’t do much of anything but recharge my batteries. But I am reminded once again of stuff I wanted to post about but didn’t get around to.
First up, Stephen Halbrook has an important book out that he (and the Independence Institute) want to drive to #1 on Amazon and beyond: The Founders’ Second Amendment: Origins of the Right to Bear Arms. The push started on the Bill of Rights day (Dec. 15), but Amazon ran out of stock when it hit #140 overall. Apparently it’s back in stock (though Amazon is still quoting 3-4 weeks). If you haven’t, buy a copy. Buy one for your nearest high-school library, if nothing else.
Next up, our buddy Saul Cornell. It appears that he’s still living in his jabberwocky world where history says what he twists it to say. David Hardy has written an article published in the Northwestern University Law Review on the source material Saul Cornell used in pieces that were cited in both majority and minority opinions in D.C. v Heller. David’s piece proves conclusively that Saul was, once again, exceedingly selective and misleading about what was in those source materials. As Clayton Cramer explained,
. . . as several reviewers of Cornell’s most recent book have pointed out, Cornell’s work is riddled with gross factual errors–and like Bellesiles, those errors are remarkably one-sided . . . .
He does seem to do that a lot.
And get away with it.
Here’s the pertinent excerpt from David Hardy’s paper:
One wonders how the Stevens dissent in Heller could have argued, from these lecture notes, that St. George Tucker, on whom the Court relies heavily, did not consistently adhere to the position that the Amendment was designed to protect the ‘Blackstonian’ self-defense right . . . or that the notes suggest the Second Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendments.
The brief answer appears to be that the dissent relied uncritically on the portions of the lecture notes quoted by Saul Cornell in a 2006 article, which the dissent cites as authority. The article sets out the quotations cited by the dissent and argues that they reflect Tucker’s earliest formulation of the meaning of the Second Amendment, and casts the right to bear arms as a right of the states.
In fact, the article’s quotations are misleading; they come from Tucker’s discussion of the militia clauses of the original Constitution, which predictably deal with military power and the States. Tucker argues that the States have the power to arm their militias should Congress not do so since such power is not forbidden to States by the Constitution and hence is protected by the Tenth Amendment, just as any arms given would be protected by the Second Amendment. When, less than twenty pages later, Tucker does discuss the Bill of Rights, the language he uses closely parallels his 1803 Blackstone’s Commentaries, usually down to the word.
The 2006 paper was St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 WM. & MARY L. REV. 1123, 1129–30 (2006). The words that Saul Cornell left out of his paper?
The right of the people to keep and bear arms shall not be infringed – this may be considered as the palladium of liberty. The right of self defense is the first law of nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up & the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so. In England the people have been disarmed under the specious pretext of preserving the game. By the alluring idea, the landed aristocracy have been brought to side with the Court in a measure evidently calculated to check the effect of any ferment which the measures of government may produce in the minds of the people. The Game laws are a [consolation?] for the government, a rattle for the gentry, and a rack for the nation.
Can’t have that when you’re trying to prove that St. George Tucker didn’t believe the right to arms was an individual one, independent of militia service! Best not mention it! Your Joyce Foundation monies might be cut off!
Keep giving him hell. Maybe Cornell can be disgraced out of his position like Michael Bellisiles was.
