Ohio State historian Saul Cornell, director of the Second Amendment Research Center, offers a very negative assessment of Judge Silberman's majority opinion in Parker v. District of Columbia on Balkinization. According to Professor Cornell, the opinion "rests on a combination of bad law and even worse history." This may all be true, but Cornell's post fails to make the case. Cornell's post is long on rhetoric and conclusory allegations, but rather short on evidence to support his central claim.
The best example is Professor Cornell's discussion of the court's treatment of the 1939 Supreme Court decision in United States vs. Miller. "It is rather shocking to see a Federal Appeals Court misread established precedent in such a politically distorted fashion," writes Professor Cornell. According to Professor Cornell, the court adopts a "revisionist reading" of Miller that dismisses the contemporary understanding of the decision which embraced "the overwhelmingly scholarly and legal consensus of the day that the Second Amendment was about the militia." This may be a fair characterization of the case, but this hardly suggests that the D.C. Circuit was wrong to conclude that the Second Amendment protects the right of an individual to own arms and keep them in a private residence.
The Miller opinion devotes substantial space to showing that the Second Amendment right is connected to the militia, but it does so to determine whether the weapon at issue — a sawed-off shotgun — was the sort of weapon that would be used by a militia. If so, the Court suggests, the defendant would have had the right to keep the weapon in his home. As the Court explained:
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.This interpretation is further supported by the Court's discussion of the significance of the word "militia" in the Second Amendment:
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.If members of the militia could not own their own arms, it would certainly be difficult to rely upon them to "appear bearing arms supplied by themselves." Thus, the question was not whether an individual — or, at least, a "physically capable" male — could own a gun, but whether the rather unconventional weapon at issue was "the kind in common use at the time" that a member of the militia would be expected to own. In sum, Miller's extensive discussion of the militia is fully consonant with the conclusion that the Second Amendment protects the rights of individuals to own guns.
Something else that is curious about Professor Cornell's discussion is his attribution of a quote to Justice McReynolds that is not in the opinion. Professor Cornell writes:
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."Justice McReynolds may well have said this — perhaps when announcing the opinion — but the quote does not appear in the text of the opinion — at least not that which is available on Westlaw. Perhaps more importantly, this quote, like the rest of Miller, is fully consistent with the interpretation I've sketched above. In other words, it does not undermine the conclusion that the Second Amendment protects the rights of at least some individuals (those in the militia, organized and unorganized) to own at least some guns (those well-suited to military service). In other words, it does nothing to undermine a qualified individual rights interpretation of the Amendment.
It should also go without saying that merely establishing the existence of a right, such as to gun ownership, leaves open how that right should be defined and when it may be limited by government regulation. Thus, this interpretation does not necessarily lead to the invalidation of reasonable gun control measures that do not infringe upon the Amendment's central purpose.
Professor Cornell has other criticisms of the Parker opinion, such as its reliance upon Anti-Federalist writings in Pennsylvania, but they seem less significant to the outcome of the case. How the D.C. Circuit handled relevant Supreme Court precedent seems more important than its assessment of 18th Century texts. I also suspect that some of the sources Professor Cornell claims would contradict the D.C. Circuit's opinion, such as the writings of Justice Joseph Story, are more equivocal than his post would suggest.
The length of this post notwithstanding, I don't claim to be a Second Amendment scholar — I devote only one day to it in my ConLaw class — but I am unconvinced by Professor Cornell's post, particularly given his resort to sweeping statements about what is no more than ambiguously supportive evidence. I readily admit that the interpretation of Miller sketched above is not the only plausible reading of the decision, but I do not see much of anything in the opinion that wholly repudiates this sort of qualified individual rights view. If, as Professor Cornell maintains, this sort of interpretation amounts to an abuse of precedent lacking any historical foundation, his Balkinization post does not make the case.
[ASIDE: I took a class with Professor Cornell at the University of Pennsylvania when he was a graduate student and I was in high school. The class was on the political and social thought of the American colonial and revolutionary periods. It was an intellectual feast and helped spark my interest in academia. It was also my first sustained exposure to classical liberal thought — something from which I've clearly never recovered. On all these counts, I am grateful.]
UPDATE: A reader writes to confirm that the Justice McReynolds quote above is from the New York Times story about the Miller opinion when it was issued. Apparently it is a direct quote (or at least a paraphrase) from what Justice McReynolds said when announcing the opinion. This does not change the substance of my post, however, as the quote is fully consistent with the interpretation I outline above.
SECOND UPDATE: Thanks to my law librarian, I have obtained a copy of the New York Times story from May 16, 1939 on the Miller decision in which the aforementioned Justice McReynolds quote appears. As I suspected, the quote cam from Justice McReynolds' announcement of the decision (which he "drawled from the bench," the NYT reports). This story, like the text of the Miller decision itself does not support Professor Cornell's case, however. Instead, it reinforces the understanding that the Second Amendment protects an individual right to own those weapons that have a relationship to service in the militia. Only because the Court concluded that a sawed-off shotgun lacked such a relationship did it overturn the lower court decision quashing the indictment of two individuals for taking such a weapon across state lines without registering it.
THIRD UPDATE: Several commenters note the Second Amendment Research Center is funded by the Joyce Foundation, and suggest this is relevant because Joyce Foundation is a prominent funder of gun control efforts. This may be true, but I do not think it is relevant to the truth or falsity of Professor Cornell's arguments. As I have argued before, the merits of an argument can and should be evaluated independently of any funding source. Sure, following the money trail can, like other ad hominem evaluations, serve as a useful heuristic, but it says nothing about the ultimate validity of the argument itself.
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