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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Well, if the lousy old First Amendment won't protect my word-weapons, which "by their very utterance inflict injury," then maybe the Second Amendment will.
Anyway, doesn't the Miller excerpt quoted in the post suggest that the Second Amendment protects the right to keep weapons of the sort used by the militia, and not weapons in general?
Seems to me like one more case in which the Framers didn't have all the answers. At least here, though, they may have showed the foresight of adding qualifying language that can be read to limit the right when its underlying rationale seems to have evaporated.
Of course, we could always call up the Constitutional Convention Hotline and ask them what they mean. Thing is, whenever I dial the number, the guy on the other end sounds suspiciously like Antonin Scalia. The other day he told me the Privileges and Immunities Clause required me to bring him a plate of linguini puttanesca — without the anchovies (hence "immunity," I suppose). Humph.
(I can make that last crack, by the way, because I'm Italian. So there.)
Along the lines of Shelby's comment, I think a key point in the near future will be fleshing out what Miller meant by "arms . . . of the kind in common use at the time." Does it mean common *military* use or common *civilian* use? In the late 18th century, the gap was not nearly so wide as it is now, and the distinction will be critical to deciding the constitutionality of "assault weapon" bans, machine gun bans, etc.
The govt argued in appeal in Miller the collective rights position, which the court did not endorse, as the case was remanded for evidentiary proceedings into whether or not the gun in question was suitable for militia use (with the rather obvious intent that if it were it's possession would be protected). Recent military history would've indeed revealed the use of "trench guns" (i.e. short barrel shotguns). If the collective rights position had swayed the court, it would not have remanded, it would have ruled on lack of standing. Notably, the court did NOT do this.
http://www.gurapossessky.com/documents/langer112806.pdf
I do not question that Professor Cornell's beliefs are sincerely held. But the backers of "The Second Amendment Research Center" would hardly expect him to discover an individual right.
In effect, Saul Cornell is merely a paid mouthpiece singing the Joyce Foundation "party line." That's why "Cornell's post is long on rhetoric and conclusory allegations, but rather short on evidence to support his central claim." If Cornell wants the money he has to sing their song no matter how off key. At least the employees at the Brady Bunch (Henigan, et al) are open about who pays the piano player.
Where does the Parker court rely on Antifederalist writings to distort the meaning of the 2d Amendment? I see two or three references to the Antifederalists and almost no reliance on their writings (except for the section on what "bear" means, which appears defensible).
The idea that Miller is this lock on the collective right theory is a joke. Look at the posture of Miller. Look at how it was argued. Look at the limited nature of its holding (that required a remand on a evidentiary question about the relationship between a weapon and the preservation or efficiency of a militia). At best the decision is hopelessly ambiguous. By implication, it could be read to reject the collective right view, given that the gov't argued hard for such a holding.
Saul Cornell's schtick is tired and unhelpful. He tries to shut down a debate before it's started and will never acknowledge that someone on the other side of the gun debate has read the researched the issue and come to a different conclusion. He does a disservice to his students with this tripe. It's instruction by condescension.
WHO IS THIS GUY??? How can Saul Cornell essentially shill for the gun control faction at a major academic institution??? Why can he guest blog on a credible law blog if he doesn't even read the decision on which he opines? I know he's a former prof of yours, Jonathan, but I hope your post provides an antidote to this man's undue influence on the debate over the 2d Amendment.
MONEY, big money.
The Joyce Foundation has bought itself an academic mouthpiece (Cornell) and an orchestra to back him up (the "Research" Center). Ohio State has sold itself to someone with a big bag of cash. Where is the IRS when you need them?
Upside down and backwards, insofar as I can tell. I've gone
a couple of rounds with him myself over his widely published op-eds on the Second Amendment. In fact, one of my pieces comes up as hit #3 in a Google search for "Saul Cornell."
In it he acknowledges not being an "originalist." Really? Color me surprised. He also acknowledges that prior to the turn of the 20th Century the right to arms was definitely considered an individual right, so he can't be an originialist - else he'd have to take our position. He dismisses Lawrence Tribe's understanding of the meaning of the Second Amendment because Tribe is "hardly an expert on American history," yet he ignores that Tribe is a law professor and and expert on Constitutional LAW.
As I noted in that piece to Professor Cornell: I have a much better feel for that question now.
Admittedly I'm just a computer science guy with a passion for American history, but I pride myself on having a very penetrating insight (helps with solving problems) and I think I bring a wealth of logic and rationality to what often seems way too emotional a subject.
Cornell has all the makings of a well-financed Bellesiles. The difference is that he doesn't rely on hard facts that can be disproven. He's just a hit man for the collective rights side. I really can't take his work seriously at this point, and, sadly, I've read almost all of it. (Only recently did I discover the deep pockets that fund his work.)
Says the "Dog"
When he brings millions of dollars home for the University to share. For OSU, it's not about principle, it's about the dough.
Harvard gave back the UAE Sheik's money only after it was publicized and then only because the Sheik was anti-semitic. It is not only OK, but enthusiastically endorsed, for an academic or academic institution to be anti-gun.
At my University they are proud to declare they "know nothing" before arriving at this opinion (it is an article of near-religious faith for them). They refuse information as if it were a tainted bodily fluid. My colleagues are afraid that facts will change their conclusions. They refuse to read anything that that doesn't support the "liberal" party line that Cornell, Dorf, and others preach.
I don't mean to be a provocateur here, but are women not allowed to own weapons? Does suffrage matter? How about the current constituency of the military? Is it man as in mankind? Or does no ERA mean that women get the ball bats and skillets and all of us red blooded chromosomally affirmed get the shooting irons
This is a troubling point, but I think there are two responses. First, considering the insurgency in Iraq, perhaps the idea of a militia is not so out of keeping with the modern world. Second, by what creiteria do we determine that part of the Bill of Rights is now superseded and need no longer be respected? These same criteria must be applied to the 1st, 4th, 5th, and other amendments.
Ad homnium is a <i>logical</i> falacy, but that doesn't mean it's a bad heuristic.
Your first point is well-taken, though I think the more immediate example of Katrina (when the governments fail . . .) makes a better case for a militia's ongoing relevance. The possibility of us getting Iraq-ed is pretty slim. Still, I take your point. It's just not obvious to me that in a situation like the one post-Katrina, where you might have an armed militia restore order but it's even odds that instead you'll get everybody with a gun doing for himself, we have the prospect of a secured free state through borne arms. But I'll certainly admit the possibility.
But I don't agree with your second point, and here's why: the Second Amendment is unique in that the Framers felt an apparent need to justify the right in the text of the Amendment. There's no similar language in the First, Fourth, or Fifth Amendment. If we are here, as we seem to be, overly concerned with what these folks wanted for us (putting aside the question whether the same people who would brook no tyranny themselves intended to install themselves as tyrants over subsequent generations), we should make something of the fact that they felt compelled to append this justifying -- and potentially limiting, depending on how you interpret the grammar of it -- language. I would conclude that they weren't 100% comfortable with the right, and that they certainly didn't view it as on an equal footing with those articulated elsewhere in the Bill of Rights.
But I get that I'm in the minority here. That's why I wore the Kevlar vest to work today.
Considering the Constitution (Art I, Sec. 8) explicitly grants Congress the power to issue letters of marque and reprisal, I would say the answer is "yes."
But as to whether to Constitution in general contemplated private citizens owning armed warships, the answer is clearly "yes."
Not necessarily. Lots of us are just reading along.
Nick
Privateers were nearly all profit oriented, so they went after merchant shipping. There's no profit in fighting navy ships, even if you happen to win, and a warship big enough to beat a frigate cost so much to run that it was unlikely to be profitable. Privateers *did* contribute to winning wars in two ways, perhaps especially in the War of 1812. Their capture of enemy-owned merchantmen hit an influential class among the enemy (rich merchants) in the pocketbook and increased the pressure on the enemy government to negotiate an end to the war. And Navy ships had to disperse all over the ocean to chase them, thereby reducing the force available for true military operations. (This was especially difficult for the Brits in 1812, because their Navy was rather run down from trying to blockade the Continent for a decade and tended to fall short in speed and seamanship against fresh American ships and crews, while the US Navy's tiny force of oversized frigates made patrolling alone rather dangerous for the British frigates...)
Academic integrity? Tell me when it arrives.
Of course, since convicted felons may not be punished for failing to register, and there are essentially no crimes (other than gun control violations) ever solved with registration--why bother?
JNH
"Second, by what creiteria do we determine that part of the Bill of Rights is now superseded and need no longer be respected? These same criteria must be applied to the 1st, 4th, 5th, and other amendments."
That's pretty easy: By the same criterion that we determined that the 18th Amendment had been superseded.
Jon has noted in amendments to his post that Cornell's funding is irrelevant to the merits of his argument with which I concur.
Numerous comments which extend sarcastic reference to the potential impact on Cornell's scholarship given the Joyce funding highlight the semantical importance placed on this context and this is fertile ground for argument. The imprimateur of letters after ones name (goes for esq as well)add heft for people who are looking for some predigested solution and often one that tends towards their own beliefs.The idea that an academic program would effectively reach these conclusions then is powerful and Cornell's association with and speaking for the Second Amendment Center is relevant, especially when there isn't anyone writing a different point of view from that center. It obviously becomes necessary to act like there is no other point of view or the academic emporer is going to be seen to be wearing no clothes.
Which brings us quite seguistically to global warming. The argument there these days is that there is no argument. Strikingly similar.
I am laughing all the way to the bank to cash my evil coporate toady checks that global warming should be brought up as an example comparable to the Second Amendment Center. Where, at what prestigious university is there an entire climate study center devoted to the proposition that the sun and eliptical orbit and other foundational mechanisms outpace human influence on the climate? So the few people willing to publish scholarship that suggest this and the think tanks wishing to publicize their work got some money from Exxon Mobil until Olympia McCarthy went to work on them.
We're talking apples and oranges here. And we're forgetting whose getting the most bang for their buck int he climate fruitmarket anyway. There are far more people on the payroll with a vested interest in giving children nightmares to keep this thing alive than the few contraians who when their stubborn nature became apparent have received funding by purported corporate baddies --Exxon Mobil comes to mind (as they do every time I need to fill my gas tank and thank my lucky stars for evil coporations).
An important distinction here is the capitulation of the higher education establishment. Partly because they were shut out of the institutions, pro industry and right leaning researchers developed think tanks. Their predispositions are understood, which doesn't impeach the credibility of their arguments, per se, it illuminates the chip on their shoulder. Some participants may be scholarly writers and have careers as academics but I would ask you -- without presuming there is no such thing -- to site any right leaning academic fiefdom remotley analgous to the Second Amendment Center bought and paid for by Mellon-Scaife or Koch or (insert run wing conspiracist here).
So I think it is reasonable to impeach the educational institutions that sell out the truth and free inquiry for a ride on easy street. Cornell impeaches himself by his own writing so that isn't really necessary to add anything there.
Brian
Does the term "Letters of Marque and Reprisal" ring any bells? Essentially a congressional authorization for a citizen to turn his merchant vessel into a privateer (pocket battleship) for official purposes.
In the early days of the republic it was not uncommon for a wealthy citizen to "raise a company" and arm and equip it - up to and including artillery....
I would submit that anything subject to "point aiming" would be a canidate to be "bearing." This would arguabley prohibit area aiming and area denial weapons like WMD, but allow anything else.
As to reasonable restrictions, the government abhors "prior restraint" in general, and well it should. Whether something constitues prior restraint or not would depend upon circumstances.
If one wishes to become the next Alfred E. Nobel and invent the next dynamite while living in a townhouse, one's neighbors could legitimately pursue a restraining order. It one has 1 1000 acre farm, the same restriction amounts to prior restraint.
It would be legitimate to permit any form of weapon, with the proviso that the projectiles fired from same should not be capable of penetrating two sheets of 1/2 inch sheetrock separated by the width of a standard 2x4.
Legitimate control with unabridged freedom. but that's not what the "grabbers" want.....
Yes, but there is no evidence that I can find that armed privateers were intended as protection by the Second Amendment. There are enough discussions of it with respect to individuals and "private arms" to know for sure that they intended small arms. There's no evidence for the larger category.
However: his commission as an officer reflected his militia duties, and that the government had him operating in an official capacity.
This is a logical argument, but not based on the verb "bear."
In the Colonial and early Republic periods, the only prior restraints on firearms were specific to the individual's status (slave, convicted of a crime, not loyal to the government), not the weapon type. However, prior restraint with respect to gunpowder storage--well, my book Armed America is chock full of examples of laws restricting the amount of gunpowder that you could store in a city without a special license.
That's what powered body armor is for. ;)
I would have to argue the point. Letters of Marque and Reprisal merely allowed the individual to bear arms for the state officially as he was already bearing them in self defense. It was expected that a merchantman would bear sufficient arms to ward off pirates. The letters merely permitted him to pursue them as an agent of the government. The point I'm trying to make is that a merchantman bearing cannon - purchased by the master or owner of the ship - the "heavy" arms of the day, was not considered unusual.
My point about "raising a company" was that the acquisition of arms to do so, whether small arms or, again cannon, was NOT considered unusual.
Law is not the only marker of what the common expectations were. History records, and we all interpret. The "grabbers" more selectively than the rest of us....
My new book has evidence that shows that private ownership of cannon, mortars, hand grenades, etc. was not unusual. There might well be a difference between the private acquisition of such ordnance and a collective body doing so. The example that you gave of a collective body doing so, however, involved a governmental franchise.