Tag: Saul Cornell

Saul Cornell Turns Up Again

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Like a bad penny, this time via Instapundit.  We get another glimpse into the jabberwocky world of Professor Saul Cornell. I’ve gone a few rounds with the good professor here at TSM, and he’s not changed a whit, apparently, except for his location. He’s moved up in the academic world. No longer an associate professor at Ohio State, he’s now “Fordham History chair and a Senior Research Scholar in Residence at Yale Law School.” Well, well!

And what does he have to say from such a lofty perch?

That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country’s founding.

Well, he said himself that he’s not an originalist.

Jeff at Protein Wisdom does a fine job of fisking Professor Cornell so I don’t have to, but I will give you Antonin Scalia’s short-course on originalism:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such.

It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.

It’s one thing for a state to amend its libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.

Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.

That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it’s hard to talk people out of it — the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is the equivalent of, an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.

My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility.

That’s not the name of the game. Some people also seem to like it because they think it’s a good liberal thing — that somehow this is a conservative/liberal battle, and conservatives like the old fashioned originalist Constitution and liberals ought to like the Living Constitution. That’s not true either. The dividing line between those who believe in the Living Constitution and those who don’t is not the dividing line between conservatives and liberals.

Conservatives are willing to grow the Constitution to cover their favorite causes just as liberals are, and the best example of that is two cases we announced some years ago on the same day, the same morning. One case was Romer v. Evans, in which the people of Colorado had enacted an amendment to the state constitution by plebiscite, which said that neither the state nor any subdivision of the state would add to the protected statuses against which private individuals cannot discriminate. The usual ones are race, religion, age, sex, disability and so forth. Would not add sexual preference — somebody thought that was a terrible idea, and, since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of — I don’t know. The Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.

—

Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work.

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.

If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English — whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.

Secondly, and this is the killer argument — I mean, it’s the best debaters argument — they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

And finally, this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed. Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.

I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean.

And that is what Professor Saul Cornell, Fordham History chair and a Senior Research Scholar in Residence at Yale Law School is advocating.

And he damned well knows it.

More Catch-Up

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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.

Saul Cornell has a Protégé?

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The wonders of academia.

Dave Kopel reports at The Volokh Conspiracy on more revisionist history requiring deliberate omission and erroneous interpretation of written documentation.

Shades of Michale Bellesiles – only this is done in an amici brief to the Supreme Court. Bellesiles is actually cited, as though Arming America had never been disproven, and Bellesiles disgraced for his academic malpractice.

Once again, Clayton Cramer has done the heavy lifting on the history.

These people have absolutely no shame.

Parker Goes to SCOTUS… as D.C. v. Heller

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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.

Saul Cornell, AGAIN

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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:

Parker v. District of Columbia: Opening Volley or Just A Flash in the Pan?

Guest Blogger

Saul Cornell
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.

Continuing:

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.

Saul Cornell Receives a Professional Whuppin’

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(h/t: Geek with a .45 who emailed me the link!)

Professor of Law Stephen Halbrook has apparently had his fill of Associate Professor of History Saul Cornell and his attempt to rewrite history in the effort to convince people that the Second Amendment wasn’t written to protect an individual right to arms.

For those unfamiliar, Associate Professor Cornell is the director of the “Second Amendment Research Center” at Ohio State University – a “research center” established with funds from the rabidly anti-gun Joyce Foundation. Yet Associate Professor Cornell presents himself as an unbiased academic, merely out to explain to we poor, unwashed, ignorant savages what the Second Amendment to the Constitution really means. He writes op-eds that end up in newspapers all over the country, and he has recently published a book has received glowing reviews from gun-grabbers. I’ve written several pieces here on Associate Professor Cornell, including a rebuttal to an email he sent me in response to my first piece. See:

Dept. of They Never Ever Stop

Professor Saul Cornell Responds, and So Do I

Saul Cornell, Unbiased Researcher

and, most recently, The Jabberwocky World of Saul Cornell.

While I’m merely an amateur, Stephen Halbrook is a professional. His curriculum vitae:

Attorney at Law, Fairfax, Va.; Ph.D. Florida State University, J.D. Georgetown University; former philosophy professor, Tuskegee University, Howard University, George Mason University. Books include The Founders’ Second Amendment (forthcoming); That Every Man Be Armed: The Evolution of a Constitutional Right (1984, 2000); A Right to Bear Arms: State & Federal Bills of Rights & Constitutional Guarantees (1989); Freedmen, the Fourteenth Amendment, & the Right to Bear Arms (1998); Firearms Law Deskbook (2006). Argued Printz v. United States, 521 U.S. 898 (1997), and other Supreme Court cases.

So when Professor Halbrook talks about law, especially firearms law, one ought to listen. Professor Halbrook has written a 25-page rebuttal (a PDF file, about half of it footnotes) to Cornell’s recent presentation of “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings” at a symposium at the William and Mary College of Law. Once again, Professor Cornell has twisted history to meet his agenda. Like others of his ilk, he selectively quotes, baldly misstates, and deliberately omits material that conclusively disproves the ideas he attempts to foist off on his unsuspecting, credulous victims readers.

I’m not going to quote too extensively from Professor Halbrook’s truly devastating rebuttal but let me give you a little of the flavor of it:

While humble people generally think that they are among “the people,” a segment of the not-so-humble appear to disagree when it comes to the right of “the people” to keep and bear arms.

—

Debunking the individual-rights “hijackers” of the Second Amendment, Professor Cornell refers to “the often-quoted passage describing it [the Second Amendment] as the ‘palladium of liberty’” at least five times, but strangely fails to provide the actual quotation or to acknowledge its contents. It would be worthwhile to do so at the outset in order to determine the extent of the constitutional hijacking by scholars who read the Second Amendment as protecting individual rights.

—

As with Tucker, Cornell studiously avoids mention of the content of Story’s analysis of the Second Amendment, much less does he quote any of Story’s “palladium of liberty” statement.

—

Having left the reader in the dark about what Tucker and Story actually said on “the palladium of liberty,” Cornell asserts that for both: “Protection of states’ rights, not individual rights, was the issue that had prompted the inclusion of the Second Amendment.”

—

Cornell refers to this statement of Tucker, but fails to quote it, and asserts that it does “not address the question of individual self defense.”

—

Tucker made further references to infringement of the individual right to bear arms which Cornell fails to mention.

—

As usual, Cornell avoids the embarrassing quotations.

—

Cornell’s rendition of Tucker is long on Cornell’s characterizations and citations to recent law review articles supporting the “collective rights” view of the Second Amendment, but woefully short on Tucker’s actual words. This pattern also arises regarding Tucker’s views on judicial review.

—

Cornell refers to the page number, but neither quotes the passage nor summarizes its content.

Halbrook corrects Cornell’s omissions, and proves conclusively that what Cornell is selling is unadulterated bullshit.

When I wrote Why Ballistic Fingerprinting Doesn’t (and Won’t) Work, I noted

What they say (and this is overwhelmingly true for these groups) is only partly (in this case, minimally) true. There’s a whole lot of information they neglect, gloss over, bury, and avoid.

Associate Professor Cornell is another example of this sad fact. Professor Halbrook hammers that point home until Cornell’s reputation ought to be nothing but a thin, putrid smear. However, as is common for the type, I’m sure Associate Professor Cornell will continue with cockroach resilience, writing more op-eds and more books filled with omissions, distortions, and outright lies.

And we, amateurs and professionals alike, will keep exposing him.

The Jabberwocky World of Saul Cornell.

KevinLeave a comment

Here he is again! Associate professor of History Saul Cornell of Ohio State University and its “Second Amendment Research Center at the John Glenn Institute” has published a new tome on the topic of just what the Second Amendment doesn’t protect. Unsurprisingly, it’s getting rave reviews (I seem to remember that Michael Bellisile’s Arming America got glowing reviews, too….) Entitled A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (working title, Armed in the Holy Cause of Liberty: Guns and the American Constitution – but I guess that one was a little too… provocative?) Associate professor Cornell attempts to shed just a little unbiased light on the subject.

Or, at least, that’s what he wants you to believe.

Clayton Cramer does his typical masterful job of dissecting the Minneapolis Star-Tribune’s laudatory op-ed/book review with, you know, facts and citations that indicate just how far off in never-never-land Associate professor Cornell really is.

Clayton opens:

Saul Cornell Is Suddenly No Longer a Partisan on Gun Control

At least, that’s what this editorial from the Minneapolis-St. Paul Star-Tribune claims…

—

Any of you who are familiar with Professor Cornell’s work can start the insane giggling right now–yeah, he’s not really on one side or the other, nor is he trying to disarm the masses.

Numerous other bloggers have noted that the “Second Amendment Research Center at the John Glenn Institute” is largely funded by the extremely anti-gun Joyce Foundation (see this post, and this post, and this one.)

But Associate professor Cornell? “He’s neither antigun nor progun. He really isn’t a gun guy at all. His thing is history.”

Right. Cue hysterical laughter.

But as I said in my first response to the good Associate professor,

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.

Clayton notes the same thing I did:

It just gets more and more “alternate universe” the deeper I read

As I said in my reply to Associate professor Cornell’s email:

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.

I think I have a better handle on that question now.

I think we all do, at least those of us who are paying attention.

But what about the general readership of the Strib?

THAT is the fight we have to fight each and every day.

Shill

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In his email to me, Professor Saul Cornell asked,

I wonder how you feel about Nelson Lund’s NRA chair at GMU law school. Would you say he is shilling for NRA?

To which I answered: “Yes.”

Dictionary.com defines “shill”:

(noun.)

One who poses as a satisfied customer or an enthusiastic gambler to dupe bystanders into participating in a swindle.

(verb)

1. To act as a shill for (a deceitful enterprise).

2. To lure (a person) into a swindle.

I must apologize to Mr. Lund.

I truly think that both Mr. Lund and Professor Cornell believe that which they profess. They are not attempting deceit as they see it. Each is professing honestly held beliefs. (At least, I hope so.)

The difference, however, is in how closely those beliefs relate to reality, and how much each person is willing to ignore or even manipulate fact in order to promote their own particular world-view.

It was this willingness to avoid or manipulate that prompted Sanford Levinson to write The Embarrassing Second Amendment. He wanted to put a spotlight on the fact that the meaning of the Second Amendment was avoided in modern law simply because it made so many people uncomfortable. He wrote:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.

Note that he included himself in that group supporting “prohibitory regulation.”

I’ve said before that I really started studying the topic of the right to arms – and, by extension, the Constitution and the Bill of Rights – starting about 1995. I have stated that I had a certain understanding of that right, and in fact all of the rights protected by that document before I began that study. To some extent, my education has lead me to some conclusions I don’t particularly care for. For instance, I think state-permitted concealed-carry is historically justifiable (but prohibition of unlicensed open carry is not.) The one thing I have noted, however, is that when people actually take the time to study the topic, the conversion of opinion goes only one way: If they believe the right to arms is an individual one, their opinion is not changed. If they believe there is no individual right to arms, either they are converted to the opposite belief, however grudgingly, or their personal prejudices prevent them from doing so. But no one is converted from believing that the Second Amendment protects an individual right to an opposite conclusion. The evidence is too overwhelming.

The best example of this I know of is Professor Laurence Tribe. Professor Tribe is a professor of Law at Harvard, and is author of the textbook American Constitutional Law, which is used in (I believe) the majority of ConLaw classes in the U.S. Professor Tribe is a self-described member of the Left, and was a member of Al Gore’s legal team during the 2000 election debacle. I have absolutely no doubt about Professor Tribe’s position concerning gun control – he’s in favor of it. In the first two editions of his textbook, printed in 1978 and 1988 respectively, he relegated discussion of the Second Amendment to footnotes. But in his third edition, published in 2000, he dedicated nine pages to the topic, 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.

A November 1999 Wall Street Journal piece, Liberals Have Second Thoughts On the Second Amendment discusses the topic as well. (The galley prints of Prof. Tribe’s book were out by then – and were already stirring controversy.)

Mr. Tribe believes the right to bear arms is limited, subject to “reasonable regulation in the interest of public safety,” as he and Yale Law Professor Akhil Reed Amar wrote in the New York Times last month. But Mr. Tribe has written that people on both sides of the policy divide face an “inescapable tension. . . between the reading of the Second Amendment that would advance the policies they favor and the reading of the Second Amendment to which intellectual honesty, and their own theories of Constitutional interpretation, would drive them.”

Journalist Daniel Lazare, a liberal gun-control advocate, acknowledges the tension, writing in Harper’s: “The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right.” Mr. Lazare argues for amending the Constitution to repeal the Second Amendment.

And there is the point I want to make with this piece. Daniel Lazare wrote to the WSJ in response to the piece:

Ms. Levey is right that I agree with constitutional scholars like Sanford Levinson and Laurence Tribe that the Second Amendment guarantees an individual right to keep and bear arms. But she is wrong elsewhere.

First of all, she describes me as a liberal. In fact, I’m a socialist.
Second, she calls me a “gun-control advocate.” In fact, nowhere in my Harper’s article, “Your Constitution is Killing You,” did I specifically argue in favor of gun control; all I said, rather, is that if that is what the democratic majority wants, that is what the democratic majority should get, Second Amendment or no Second Amendment.
Third, she says that I argue in favor of “amending the Constitution to repeal the Second Amendment.” Not so: I devoted much of it to pointing out that the amending process is quite useless in this instance. Under the terms set forth in Article V, as few as 13 states representing less than 5% of the population can block any change desired by the emaining 95%. Given that no one would have any trouble drawing up a list of 13 rural states in the South or West, states for whom repealing the Second Amendment would be akin to repealing the four Gospels, the amendment is, under anything like present conditions, invulnerable. Even though polls indicate that a majority of Americans do not want an individual right to bear arms, a Constitution made in the name of the people says that is what the people must have whether they like it or not.
This is anything but democratic. Rather than amending the Constitution, my position is that we should toss this antiquated document and create a new plan of government from scratch, this time one based on strict majority rule.

Daniel Lazare
New York

There is an honest man. A fucking socialist, but an honest man.

Which, in my humble opinion, Professor Saul Cornell is not. (Honest, not socialist – though he might be that as well.) He is at best a self-deluded man. He twists logic, consciously or unconsciously, to justify a position that cannot be reasonably held by someone willing to look reality squarely in the face. As I said to him previously:

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.

And I can’t.

But it doesn’t really matter. He’s working willingly for the Joyce Foundation – a group dedicated to, among other things, disarming Americans. David Hardy has an interesting post from April of last year concerning the Professor, his association with the Joyce Foundation, and a symposium put on by Fordham University. Hardy notes:

You must, of course, apply to Joyce for a grant. And its standards make it clear that the project — or in this case law review — is expected to advance the enactment of gun legislation (buzzword = “policy”).

The Gun Violence Program supports efforts to bring the firearms industry under comprehensive consumer product health and safety oversight as the most promising long-term strategy for reducing deaths and injuries from handguns and other firearms.
Program priorities are:
• Supporting state-based policy initiatives in Illinois and Wisconsin that can achieve meaningful reforms and provide a model for gun policy nationwide ….
• Supporting focused research to inform state policy efforts.

From its grant FAQ,

Do you fund educational programs in violence prevention? We generally do not fund such programs.
….
Do you fund research? We fund research that is likely to have a strong impact on public policy.
…..
Please tell me more about your focus on public policy. We focus our grantmaking on initiatives that promise to have an influence on public policies. That includes advancing the public debate about important policy issues, most notably the need for federal consumer product health and safety standards for the firearm industry. We believe such policy initiatives can lead to broad, systemic changes that affect the most people over the long run.

In other words: don’t come to us with a law review that will explore the Second Amendment. Come to us with an idea for one that will help enact gun laws. That is what we fund.

Now, I’m sure the professor would point out that Nelson Lund is under similar restrictions regarding NRA funding – they don’t support anti-gun research, either.

But the NRA isn’t trying to swindle Americans out of their Constitutionally guaranteed rights.

And that IS a difference.

UPDATE, 5/15: I sent an email to Prof. Lund with a link to this piece. He responds:

Mr. Baker–

Thanks for your message and consideration. I took a quick look at the web page to which you provided a link, and feel that I should point out that it is incorrect to say that “Nelson Lund is under similar restrictions regarding NRA funding – they don’t support anti-gun research, either.” My academic work is under no such restrictions. The dean of my law school has designated me the Patrick Henry Professor of Constitutional Law and the Second Amendment. I do not answer to the donor, any more than hundreds or thousands of other holders of named professorships in this country answer to those who donated funds to establish the chairs. Nor has my dean ever so much as suggested that I am under any obligation to conform my views or the results of my research to the preferences, presumed or expressed, of the donor that provided funds for the professorship to which I was named. In short, I am perfectly free to publish “anti-gun research” if that is where the search for truth leads me, and I do not believe I would suffer any financial penalty of any sort if I did so.

If you could find a way to alert your readers to these facts, I would be grateful.

Nelson Lund

Consider it done.

Prof. Cornell Responds!

KevinLeave a comment

I’ll give him credit for that, anyway. Here is his email in its entirety:

Kevin,

Thanks for the e-mail. I wonder how you feel about Nelson Lund’s NRA chair at GMU law school. Would you say he is shilling for NRA? Any way, I am in the midst of grading essays so I can’t respond to all of the errors in your blog. I think you confuse laws aimed at preventing slave revolts and the infamous Black Codes enacted after the Civil War, with earlier laws aimed at reducing gun violence. I agree with you that Tucker is quite important, but I fear you have taken his writings out of context. Tucker’s primary concern is with the danger posed by disarmament of the militias during the Alien and Sedition Crisis, not an individual right of self defense. The latter right was well established under common law and Federalists showed no interest in enacting laws that might impact this right. What Tucker wished to guard was the right of citizens to keep and bear arms in state controlled militias. In this sense, this aspect of Tucker’s thought does not fit either of the modern theories of the Second Amendment. I suggest you read my forthcoming book on the subject. You will find quite a few surprises in it.

In regard to Mr. Lund, the answer is “yes.” Like yourself, Professor, I’m certain Mr. Lund believes what he says, but I also believe he wouldn’t be sitting in an NRA-endowed chair if he wasn’t aligned with the NRA’s agenda.

I’ve taken Tucker out of context? I quoted, so far as I know, the entire passage concerning Tucker’s understanding of the Second Amendment. I find it difficult to believe I have misinterpreted Tucker when he says “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible,” and “Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.”

He’s talking about the individual rights of possession and self-defense, and organized defense against tyrannical government. What part did I get wrong? And are you not championing “robust regulation” – by government – up to and including “broad-scale prohibition?” The very thing Tucker decried? Sorry Professor, but that’s more pretzel-logic.

After your book comes out, I’ll see if I can pick one up on the used market. I’m sure it will be as fascinating and fact-filled as Michael Bellesiles’ Arming America.

Saul Cornell, Unbiased Researcher

KevinLeave a comment

Professor Saul Cornell of Ohio State University and I have had our differences before. Back in February of last year Prof. Cornell (then associate professor) published an op-ed in a number of papers that lit my fuse, so I fisked it, and sent him a link to the post. To my surprise, he responded. I was surprised that he responded. I was not surprised by the response. In March I received a nice email from a student at OSU who had penned a story for the school’s alternate student paper, The Sentinel, entitled Something’s Fishy at the John Glenn Institute, noting that the “Second Amendment Research Center” at the John Glenn Institute was established with a $400,000 grant from The Joyce Foundation. It’s a good piece.

The Geek with a .45 has done a lot of research on the Joyce Foundation and who and what it supports. That’s worth a read, too.

Anyway, it looks like the good Professor is still earning his grant money, as Rob Smith has discovered yet another op-ed by that unbiased historian, entitled Reconstructing the Second Amendment. Let us fisk:

Reconstructing the Second Amendment

By Saul Cornell
History News Service

Few issues in America are more controversial than guns. Yet even among hot button topics in American public life there is something perverse about the dynamics of the debate over guns.

Only since we’ve figured out that your side intends to disarm us, the law-abiding. Controversial, yes, but I don’t consider it “perverse.” Interesting choice of word though, don’t you think?

Polling data for decades have shown that most Americans favor stronger gun laws. Indeed, surveys demonstrate that such policies are even supported by most gun owners. Yet pundits and political soothsayers have written off this issue because it is perceived to be a loser at the polls.

That’s because the issue IS a loser at the polls. Yes, when interviewed with generic questions most people say they want “more effective gun laws,” (who wouldn’t?) but almost every time your side proposes a specific “next step” the response at the ballot box is “Not THAT!!“

Gun rights and gun control have long histories. Although both sides in the great American gun debate have claimed to have history on their side, each has presented a version of the past that is highly selective.

True, to some extent.

One of the many embarrassing truths about the debate over the right to bear arms that neither side wishes to admit is that gun rights ideology is the illegitimate and spurned child of gun control.

Au contraire, mon ami. One of the most embarrassing truths about the debate over the right to bear arms is that gun control is the illegitimate and spurned child of racist laws designed to disarm blacks after the Civil War. Want to discuss that topic? I believe I mentioned that in the initial rebuttal to a Saul Cornell op-ed.

Efforts at gun control, particularly policies aimed at broad-scale prohibitions of firearms, have generally led to an intensification of gun rights rhetoric and activism.

You don’t say. I can’t imagine why “broad-scale prohibition” would raise our ire. Is that the “perverse” reaction the professor was alluding to?

Understanding the history of this tangled relationship, one of American history’s more bizarre examples of ideological co-dependency, may provide some insights into how we might move this debate forward and break this cycle.

Hmm… perversion and co-dependency. Interesting how the professor – of history – is couching his argument in terms of abnormal psychology, isn’t it? Do you think he’s implying anything?

New York Mayor Michael Bloomberg’s recent summit on gun violence reminds us that this is not the first time in American history that gun violence and gun control have been on the minds of New Yorkers. DeWitt Clinton, mayor from 1803 to 1815, bemoaned the problem posed by handguns almost 200 years ago.

Yes, I believe DeWitt Clinton fought a duel in 1802, shooting his challenger, John Swartwout, once in the thigh and once in the ankle. (They exchanged five shots during the duel.) I imagine he had some interesting things to say about gun violence and gun control. Too bad Prof. (of history) Cornell didn’t bother to tell us any of them. As to New York and gun control, the thing that comes immediately to my mind is New York’s 1911 Sullivan Law that made it mandatory to get a permit from the police to possess a handgun in the city. You have to wonder just who it was they were trying to disarm, don’t you? And were they successful?

Well, if Mayor Bloomberg has found it necessary to hold a “gun summit,” 95 years after the passage of that law, it would appear not. So that “next step” would seem to be San Francisco’s “broad-scale prohibition,” wouldn’t it? It’s worked so well in Washington D.C.

As long as there have been guns in America there have been regulations governing their use and storage.

Really? Use, yes, but storage?

Without government direction there would have been no body of Minutemen to muster on the town greens at Lexington and Concord.

Minutemen who brought their own guns from their own homes where how they were stored was no business of the government? What was that argument again?

If the Founders had imbibed the strong gun rights ideology that drives today’s gun debate we would all be drinking tea and singing, “God save our gracious Queen.”

This is the thing about Prof. Cornell that just floors me. He attempts to invert reality in his op-eds, counting that his position as an “authority” will convince the ignorant. In the first piece I fisked the good Professor insisted that it was “activist judges” who were responsible for “striking down existing gun laws,” and that returning to the original understanding of the Second Amendment in his words, “goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times.” Now, according to the esteemed Professor, if the Founders had really believed that citizens should have the right to keep and bear arms, we’d have lost the Revolutionary war!

I have to wonder what color the sky is in Professor Cornell’s world. Green, probably. That Joyce Foundation money must be really impressive. (Actually, I think the Professor really thinks like this regardless of where his grant money comes from, but I’m sure he’s more than happy to have it.)

Ironically, the Second Amendment does not prohibit robust gun regulation, it compels it.

Let’s see what the Second Amendment really says:

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.

So, if we change the language to say “A well-read populace, being necessary to the security of a free state, the right of the people to keep and carry books, shall not be infringed,” it compels “robust regulation” of the possession (and storage) of books?

I don’t see it. But then, I don’t live in Prof. Cornell’s topsy-turvey world, either. Ironic, isn’t it?

Today’s gun rights ideology is antithetical to the original understanding of the Second Amendment and only emerged in the 19th century when individual states began passing the first gun control laws to deal with the new problems posed by hand guns.

No, today’s gun rights ideology is antithetical to the gun control laws first passed in the 19th century that were written to deal with the new problems of armed free black citizens. Let me quote Chief Justice Taney from his late 18th century decision in Dred Scott v. Sanford again:

(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)

Let’s see, the Chief Justice gave a pretty good list of the rights of citizens in the United States that were protected by the Constitution, didn’t he? But Prof. Cornell wants you to believe that the laws passed that were intended to disarm blacks were actually in response to the introduction of handguns. (Even though handguns had been around since long before the 18th century.) Just like he wants you to believe that if the Founders had really believed in a right to arms, we’d have lost the Revolutionary War.

I’m not buying, Professor.

There is much to be learned from America’s first gun violence crisis and the first gun-control movement.

I’ll say. And it’s not the bilge you’re selling.

It is not surprising that during that struggle gun rights supporters tried to lay claim to the Second Amendment by reinterpreting it as an individual right of self-defense.

Um, sorry. Professor, you’re supposedly an historian. Haven’t you heard of St. George Tucker and American Blackstone, his 1803 (that’s 19th century ante-bellum) legal text? A text that came out during the same period in which DeWitt Clinton lived and fought his pistol duel? Quoting Tucker on the Second Amendment:

This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

St. George Tucker, arguably one of the greatest authorities on American law during the period immediately after Ratification understood the Second Amendment as a protection of the individual right of self-defense, and the individual right of the possession of arms.

Yet the good Professor of HISTORY insists that no, no! That’s a modern reinterpretation of the Second Amendment! A reinterpretation that “goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times.”

Again, I’m not buying. I’m experiencing deja moo – I’ve heard this bullshit before.

This argument continues to be effectively employed by opponents of gun regulation.

Perhaps because it’s true?

Modern gun-control proponents have generally been embarrassed by the Second Amendment, viewing it as an anachronism.

As beautifully described by a real student of history, Law Professor Sanford Levinson in his 1989 Yale Law Journal paper The Embarrassing Second Amendment where he wrote:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay–The Embarrassing Second Amendment–for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights….

Such people as Professor Saul Cornell, who must twist himself into a logical pretzel to make the arguments he keeps making – and getting published across the country on the basis that he’s a professor of history, and must therefore be an unbiased and informed voice only interested in educating the hoi polloi.

Early proponents of gun regulation did not make the same mistake. Rather than dismiss the Second Amendment as a remnant of America ‘s revolutionary past, they venerated it, reminding their opponents that the Second Amendment was about an obligation citizens owed to their government and communities to contribute to public defense.

No, they couched their arguments in terms of “public safety” while nudging and winking at each other because their intent was merely to disarm blacks and other minorities – in direct violation of the Second and Fourteenth Amendments.

They also staked out another right that has not been much talked about recently in this debate: a right to be free from the fear of gun violence.

Yes, this is a new topic – the “right” to be free – not of “gun violence,” but the fear of it.

A right to be free of fear. Who thought that one up?

What does all of this mean for the contemporary gun debate? Proponents of gun control must not demonize gun owners, particularly given the fact that most gun owners support reasonable gun regulation. Any solution to America’s gun problem must have the support of gun owners.

Read: “We must confuse and trick them into giving up what they will not otherwise yield willingly.”

Rather than abandon the Second Amendment and dismiss it as a relic of another era, supporters of gun regulation need to reclaim this part of our constitutional heritage.

“Just so long as, you know, we don’t acknowledge that it actually protects anything.”

Supporters of regulation need to point out that liberty without regulation is impossible. The right to be free from the threat of gun violence deserves as much respect as the right to bear arms.

Tell me, Professor, do I have a “right” to be free of the fear of, say, cancer? The “right” to be free of the fear of man-made pollutants? The “right” to be free of the fear of car accidents? The “right” to be free of the fear of being the victim of a violent crime committed with a weapon other than a firearm? The “right” to be free of the fear of a planet-killing asteroid? Global warming? Alien abduction?

Rob Smith has it absolutely right:

I have just one question: Why is it that the more imaginary “rights” people invent, the less personal freedom I have?

And why didn’t the Salt Lake Tribune note that Prof. Cornell was also Director of the Second Amendment Research Center at the John Glenn Institute at Ohio State University?