Tag: Saul Cornell

I added an update to the post below, but this is important enough for its own post. Professor Saul Cornell is director of Ohio State University’s John Glenn Second Amendment Research Center, funded primarily by the anti-gun Joyce Foundation. I first got involved in this when I fisked an op-ed written by Prof. Cornell that was published in several newspapers across the country. I emailed him a link, and he replied. His reply was, in my opinion, weak though very personally illuminating, and I wrote a post illustrating it. In the fisking I wrote:

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

In my rebuttal to his reply I wrote:

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.

In Randy Barnett’s most recent entry on the topic at The Volokh Conspiracy he had this to say:

Saul asked in his reply: “Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view.” I do not expect Joyce to fund any point of view with which they disagree. It is not Joyce we are talking about, it is Chicago-Kent and Ohio State. Nor, to reiterate, do I have any problem with an individual scholar like Saul who agrees with Joyce accepting funding to support his or her academic research, provided the funding is disclosed. But Ohio State, like Chicago-Kent, is an academic institution, unlike Cato, or the Federalist Society. (I raised the Federalist Society because, even though it is not an academic institution, its programs have more balance than did Chicago-Kent’s. (I did not compare the Fordham Law Review symposium to the Federalist Society—indeed, I did not mention that symposium at all in my post.)

Let me clarify this by posing the following question: Why did Joyce not organize its own conference, law review issue, or Second Amendment Research Center? The answer is plain: it wants its views to enjoy the academic respectability imparted upon it by the imprimatur of Chicago-Kent and Ohio State. It is that institutional imprimatur that enabled the Ninth Circuit to rely so heavily on articles published in the Chicago-Kent Law Review in his opinion in Silveira v. Lockyer. (BTW, the published opinion had to be modified later to remove its reliance on the discredited work of Michael Bellesiles.) This is what Joyce is buying from Chicago-Kent and Ohio State. This is what it is improper of these institutions to sell.

—

If Saul truly cannot distinguish between a “research center” at a university (and a public one, no less) and a think tank like Cato, an advocacy group like the NRA or Joyce Foundation, or a blog like the Volokh Conspiracy, then there is more trouble with the Second Amendment Research Center than the principal source of its funding. But the fact that he says he would include diverse opinions in his programs (paid for somehow by other funds) and tried – albeit unsuccessfully – to include divergent views in the Fordham Law Review symposium suggests that he can tell the difference.

(Emphasis mine.) The “delusional vs. bald-faced liar” question remains open, but I know which side I’m leaning towards.

I mentioned this last week, when David Hardy picked up on Professor Saul Cornell’s contribution to a Fordham University Law Review symposium, funded (of course) by the Joyce Foundation. Well, Professor Barnett commented at the Volokh Conspiracy on the similar symposium published in the Chicago-Kent Law Review in 2000. One zinger of a quote from Prof. Barnett:

Is accepting honoraria from a foundation, like the Joyce Foundation, that will support only one side of an issue unethical? So long as one does not change one’s views to conform to the funding source’s preferences, I do not think so (though I do think one should disclose one’s funding sources to allow readers to evaluate for themselves whatever impact it may have on one’s analysis). I do not see why foundations who wish to advance a particular view cannot ethically support the research of those who otherwise agree with its agenda. Ultimately, the soundness of one’s scholarship should depend on the reasons and evidence one puts forth, not the source of any financial support one may have received. I think this is true even if the honoraria induced a scholar to write about an issue he or she would not otherwise have done, which I think probably applies to a number of contributors to the Second Amendment symposium. I feel the same way about campaign contributions. Contributing money to the campaign of politicians with whom one agrees does not corrupt the politician, unless he or she was already corrupt. Michael Bellesiles, who was paid to contribute to the Chicago-Kent symposium did not fabricate his evidence because the Joyce Foundation was paying him. He was a corrupt scholar before and after this payment was made.

So refreshing when someone is willing to call a spade a spade and not a “human operated soil relocation device.”

Read Prof. Barnett’s whole piece.

UPDATE, 4/14: Saul Cornell does it again, and Randy Barnett doesn’t let him get away with it. Here’s a key piece:

Saul asked in his reply: “Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view.” I do not expect Joyce to fund any point of view with which they disagree. It is not Joyce we are talking about, it is Chicago-Kent and Ohio State. Nor, to reiterate, do I have any problem with an individual scholar like Saul who agrees with Joyce accepting funding to support his or her academic research, provided the funding is disclosed. But Ohio State, like Chicago-Kent, is an academic institution, unlike Cato, or the Federalist Society. (I raised the Federalist Society because, even though it is not an academic institution, its programs have more balance than did Chicago-Kent’s. (I did not compare the Fordham Law Review symposium to the Federalist Society—indeed, I did not mention that symposium at all in my post.)

Let me clarify this by posing the following question: Why did Joyce not organize its own conference, law review issue, or Second Amendment Research Center? The answer is plain: it wants its views to enjoy the academic respectability imparted upon it by the imprimatur of Chicago-Kent and Ohio State. It is that institutional imprimatur that enabled the Ninth Circuit to rely so heavily on articles published in the Chicago-Kent Law Review in his opinion in Silveira v. Lockyer. (BTW, the published opinion had to be modified later to remove its reliance on the discredited work of Michael Bellesiles.) This is what Joyce is buying from Chicago-Kent and Ohio State. This is what it is improper of these institutions to sell.

I’ve got a bit more to say here.

This time on the Volokh Conspiracy and David Hardy’s new blog Of Arms and the Law. A while back, I did a fisking of a Cornell op-ed, then the good professor responded to that fisking, and I replied. Shortly thereafter, a student at Ohio State sent me a link to a piece he’d written on the Professor for the OSU Sentinel and the Professor’s position at the John Glenn Second Amendment Research Center. Then the Geek with a .45 followed up with a little in-depth research into the deep pockets and long tentacles of the Joyce Foundation and their funding for that center, and for other gun control groups.

David Hardy, an Arizona lawyer and supporter of the right to arms, noted on April 3 that Fordham University’s Law Review was going to publish

…a symposium issue on the Second Amendment — strangely, without a single recognizable pro-individual rights author (and almost without recognizable authors at all).
Aha, thought I — is the Joyce Foundation at it again? Sure enough, a Google quickly turned this up: “The papers and commentaries presented at the conference will be published in the Fordham Law Review in Fall 2004. The conference was funded by a generous grant from The Joyce Foundation.”

Prof. Cornell’s name came up again in that post in connection to the Joyce Foundation, with reference back to that OSU Sentinel piece I linked to back on the first of March.

The Volokh Conspiracy picked up on David Hardy’s piece, and that got the attention of Il Professore who responded there. Money quote:

The Fordham conference was much more inclusive that the law review issue organized by Glenn Reynolds that gave rise to the silly notion of a standard model. The goal of this conference was to present new research, not recycle the same old arguments.

Right. That would be ideas like “the Standard Model” is “revisionist” and “goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times”?? Now who’s being silly?

This kind of exchange is awkward, with someone posting on one blog, but the respondent replying on another. Perhaps, however, Prof. Cornell didn’t like my reply to his response here, and has decided to do it the difficult way with intent.

David Hardy’s latest piece on the Joyce Foundation funding is up here. Pretty damning, in my opinion.

“Oh what a tangled web they weave…”

But man they’ve got some deep pockets. And a LOT of bad pennies.

The Geek with a .45 followed up a bit on my post More on Prof. Saul Cornell. In particular, he did some research into The Joyce Foundation and how it funds the propaganda war on guns. Interesting read. But he recently added this simple but powerful graphic to illustrate the problem:

As commenter “eddie g” stated,

People don’t trust the NRA or so we are told (Hell we don’t trust the NRA.) Imagine if they started to move money to proxy groups that hid their allegiance, as in the John Glenn Institute. They do it and get an op-ed mention in an on-line paper, the NRA does it…..front page news on every liberal rag in America!

The Geek responded:

Unfortunately, the NRA is a monolith, and a single source to boot.

In memetic warfare, a distributed proxy attack from all angles is much more effective than a single large thrust from a monolithic source that can be dismissed.

The NRA can do PR to counter each and every message, but if you’ve managed to convince Joe & Jane Normal that the NRA is full of it, NO message gets through.

Which is a good reason to also support groups like Jews for the Preservation of Firearms Ownership, The Second Amendment Foundation, Gun Owners of America, The Pink Pistols, etc.

But the Geek is certainly correct in his original assertion that “It’s a lot harder to dismiss The Univ of X, Univ of Y, Univ of Z, and so on.”

Which brings up MY follow-up on this topic, or actually Antonio Ciaccia’s. Seems he got a response from Prof. Cornell, which was posted at the OSU group blog The Open End. Mr. Ciaccia quite handily dismembered Prof. Cornell’s reply.

Note that one of Prof. Cornell’s arguments is this:

You do not seem to be aware that the NRA created a professorship in 2nd Amendment law at GM Law school that has a clear litmus test for the holder of the chair. The holder must support the individual rights view! Are you going to attack them for doing what you claim we have done?

Antonio’s response to that:

As for your problem with the NRA setting up a professorship, I go to Ohio State, and this is an Ohio State newspaper. We deal with matters on this campus. And what we know on this campus is that you were named dircetor(sic) of a policy institute funded by the Joyce Foundation with suspect agendas to boot. Passing blame to another is no way to cover yourself (see: fallacy of tu quoque).

He shoots, he SCORES! (Read the whole thing.) But it does illustrate “eddie g’s” point.

I received an excellent email tonight from one Antonio Ciaccia, with a pointer to his just-published piece in the Ohio State Sentinel on Professor Saul Cornell. You remember the good Professor? He’s the scholar that wrote the op-ed I fisked last month, and then the reply to it that I, er, took exception to a couple of days later.

Well, Mr. Ciaccia has done a bit of an exposé on Prof. Cornell, entitled Something’s Fishy at the John Glenn Institute. Mr. Chiaccia’s email was as follows:

Hello sir, I couldn’t help but notice your work on Saul Cornell. I am a student at Ohio State University, and I have recently done some research of my own on Dr. Cornell. I write for a watchdog student newspaper here on campus. I have found that Cornell’s name seems to pop up everywhere on pro-gun sites for his work with Bellesiles and his own personal op-eds. Yet despite most press, too many are still guessing on whether this guy is anti or not. Well, your answer is hopefully here.

Mr. Ciaccia, after reading Prof. Cornell’s op-ed, it was blindingly apparent where he stood. But your piece is outstanding work, and I congratulate you for it.

For my readers, here’s an appetizer:

Picture this: a public policy institute at Penn State University is awarded money to establish an abortion research center. The money to establish the center is donated by the Christian Coalition, and the appointed director of the center has written op-ed pieces in the past about how abortion is comparable to murder. Then the center releases documents authored by its director that discuss the interpretation of the Constitution that could forbid abortion all together.

Does this sound like a reliable source for fair research?

While the above scenario is fictitious, a very similar situation has arisen at Ohio State, thanks to our very own Second Amendment Research Center (SARC). In March 2003, the John Glenn Institute created SARC to “promote informed discussion of an important policy issue and stimulate interest in history as a dynamic field relevant to current policy issues.” The director of the center, Dr. Saul Cornell, a Constitutional historian, was chosen to shed light on the difficult topic of gun policy.

It just gets better. Go read.

or “Why We Don’t Trust Gun Controllers”

I’ve got a copy of Prof. Saul Cornell’s book Whose Right to Arms Did the Second Amendment Protect? (used, via ABE) in the mail, but the next book I’m going to get is Abigail Kohn’s Shooters: Myths and Realities of America’s Gun Cultures. I’ve been considering getting a copy for a while, but Reason Magazine has a review of the book up in the current edition, and that’s sealed the deal for me.

I found this excerpt of that review particularly telling, though:

From “public health” articles proposing gun control as a cure for the “epidemic” of gun violence to highly regarded sociologists who argue that gun research should be informed by “moral principles” rather than hard facts, she confesses her surprise at the ill-informed and often tendentious research conducted by academics. Kohn’s own research for Shooters, some of which appeared in this magazine (“Their Aim Is True,” May 2001), elicited predictable responses. One colleague said she was performing a “social service by researching ‘such disgusting people.'” Another said that unless Kohn acknowledged the “inherent pathology” of gun enthusiasm, she was disrespecting victims of gun violence.

A quote from the earlier Reason piece by Ms. Kohn:

There was a time when I would not have wanted to touch a gun of any kind, much less spend part of an afternoon riding the back of a rocking mechanical pony and blazing away at a series of targets with revolvers, rifles, and shotguns. But that improbable picture is the culmination of a journey that took me from the ivory towers of academia to the shooting ranges of Northern California. Bluntly, I was surprised by what I found there. As a practicing anthropologist, I had set out in search of gun crazies, but what I found were regular folks — enthusiasts who relate to their guns in generally socially positive ways. These people are usually ignored by most media accounts of America’s “gun culture.” What follows is the story of how I came to make that discovery, and some brief sketches of the sorts of people who make up America’s much-maligned and misunderstood gun culture. Or, perhaps more accurately, America’s gun cultures.

Nice to know what some of them really think of us while they claim they only want to implement some “common-sense” regulations. And another example of people fearing what they don’t understand – and why, if we’re going to save our “gun culture” we need to be taking non-shooters out shooting.

(I thought it was Freud who stated that fear of weapons was a sign of mental aberration?)

UPDATE: I’m reminded by Denise of The Ten Ring of an op-ed first pointed to by SayUncle. The University of Conneticut’s Daily Campus printed a piece entitled Gun-nuts have no real excuse in their Feb. 1 edition. Money quote:

At first glance, the term “gun nut” would appear to be nothing more than an ad hominem against the more enthusiastic weapon owners of this country. However, as one reads the literature espoused by gun nut organizations, the reasoning behind this term becomes startlingly clear. Gun nuts are called as such because they are incontrovertibly insane.

The “gun enthusiasts are insane” meme is hardly a figment of Reason‘s imagination, and apparently the author, one Robert Schiering, hangs around a lot of people like OSU Associate Professor Saul Cornell.

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

Thanks for the e-mail.

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

Hope this helps

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

Oh, indeed, it helps.

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

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

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

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

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

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

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

Professor Levinson, in The Embarrassing Second Amendment wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I hope this helps.

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

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

Now it’s my turn.

Taking a bite out of the 2nd

By Saul Cornell
Sunday, January 30, 2005

The Department of Justice decided to revise the Second Amendment.

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

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

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

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

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

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

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

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

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

Let’s continue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To continue:

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

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

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

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

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

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

Professor Cornell concludes:

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

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

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

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

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

Further Update: The response is up here.