Archive | History

Knives and the Second Amendment

The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

Now at the printer is the first detailed scholarly analysis of Knives and the Second Amendment. 47 University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013). The article is co-authored by Clayton Cramer, Joseph Olson, and me. We argue that:

  • Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.
  • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
  • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate [...]

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Arthur Schlesinger and the Kennedy Assassination

The events of November 1963 and their aftermath are described in Chapter 9 of my undergraduate thesis The Highbrow in American Politics: Arthur M. Schlesinger Jr. and the Role of the Intellectual in Politics.

In brief: Schlesinger, John Kenneth Galbraith, and most of the rest of the White House immediately leaped to the conclusion that “the radical right” was the perpetrator. In the days following the assassination, the Kennedy White House staff split between those who were willing to work for Lyndon Johnson, and those who wanted to find a way to replace him as the the 1964 Democratic nominee with Hubert Humphrey or Robert Kennedy.

Johnson convinced Schlesinger, like almost all of the Kennedy staff, to stay on. But Johnson never gave Schlesinger any assignments, and Schlesinger resigned in early 1964. Schlesinger went to work on a biography of John F. Kennedy (A Thousand Days), and to campaigning on behalf of Robert Kennedy’s successful carpet-bagging run for a New York U.S. Senate seat.

Some observations from half a century later: liberals often had difficulty recognizing their ideological allies. Schlesinger et al. didn’t think Johnson was a liberal, although he turned out to be a much more aggressively liberal President than Kennedy had been. New York liberals, such as Americans for Democratic Action, and Jewish voters, didn’t think Robert Kennedy was a liberal, although as a Senator he (like the Democratic party) became much more liberal than John F. Kennedy had been.

The LBJ-RFK feud had much more to do with personality than with policy. The best study of this is Jeff Shesol’s excellent book Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade. Shesol finds plenty of blame on both sides, but ultimately it was RFK who obdurately refused LBJ’s overtures. [...]

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Gordon Wood on The Supreme Court’s Uses of History (“A Necessary Fiction” that “Has Its Own Integrity”)

Professors Scott Gerber and Gordon Wood recently had a discussion on “The Supreme Court’s Uses of History,” at Ohio Northern University, a transcript of which is available online. Professional historians tend to be quite skeptical of originalism, so I was intrigued to see that Gordon Wood’s remarks, while mixed, were much more accommodating than I expected. A few excerpts:

[I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, and I don’t consider that to be a bad thing. It’s a necessary fiction for judges and other jurists to get along with their work—they need some kind of history to work with. History is much too complicated to be used effectively by judges and the courts.

And on Scalia:

Now those who call themselves originalists, as Scott does, do need history and it’s they who have probably created the “history lite.” Although I think all judges go back to history—to the Constitution in one form or another—they all use history in different ways. There are, of course, many different kinds of originalists. Justice Scalia calls himself an originalist and he has been called an originalist, but he is better understood as a textualist, which is a different thing—it’s kind of a subcategory of originalists. Thus, he disclaims any effort to recover the intentions or the historical circumstances under which the Constitution was created, which absolves him of a lot of the problems that other jurists get into. All he wants to do is recover what the words meant to the people back then. He does not want to know what went on in the Convention,

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Libertarianism, the Confederacy, and the Civil War Revisited

Revelations that Rand Paul aide Jack Hunter has a history of racist and pro-Confederate statements during his days as a radio shock jock have rekindled the longstanding debate over libertarian attitudes towards the Civil War. Hunter has repudiated many of his former statements and attitudes. But that hasn’t stopped the controversy from continuing.

This uproar raises two important issues: First, is there any possible justification for libertarian sympathy for the Confederacy? Second, how should the libertarian movement react to people with views like Hunter’s?

I. The Case Against the Confederacy.

I have written about the first point at length in the past. To briefly summarize, the Confederacy is indefensible because it was created for the purpose of perpetuating and extending the evil – and manifestly unlibertarian – institution of slavery. Don’t take my word for it. Take that of Confederate President Jefferson Davis, Vice President Alexander Stephens, and the southern states’ official statements outlining their reasons for seceding.

It’s also worth remembering that the Confederacy was a brutal and oppressive regime even aside from slavery. I am by no means hostile to all secession movements. But even if you endorse secession in any situation where a majority of the people in a state support it, you should still denounce Confederate secession. I explained why here:

As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It’s a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear

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Frederick Douglass on How We Should Remember the Civil War

On Civil War anniversaries, like today’s 150th anniversary of the end of the Battle of Gettysburg, it has become traditional to commemorate both sides equally. There is some logic to this practice. We do not want to unnecessarily perpetuate sectional grievances, or be seen as somehow blaming today’s white southerners for the wrongs of earlier eras. And it is also true that the federal government committed significant wrongs of its own during the conflict, such as persecuting some of those who spoke out against its war policies. But, as Frederick Douglass pointed out in this 1871 speech in honor of the Union war dead, we should not commemorate the war in a way that obscures the moral chasm between the two sides:

We are sometimes asked, in the name of patriotism, to forget the merits of this fearful struggle, and to remember with equal admiration those who struck at the nation’s life and those who struck to save it, those who fought for slavery and those who fought for liberty and justice.

I am no minister of malice. I would not strike the fallen. I would not repel the repentant; but may my “right hand forget her cunning and my tongue cleave to the roof of my mouth,” if I forget the difference between the parties to that terrible, protracted, and bloody conflict….

The essence and significance of our devotions here to-day are not to be found in the fact that the men whose remains fill these graves were brave in battle. If we met simply to show our sense of bravery, we should find enough on both sides to kindle admiration….

But we are not here to applaud manly courage, save as it has been displayed in a noble cause. We must never forget that victory to the rebellion

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Ice-T, Volokh, and Kopel: Together at last in a feature film

The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. On-screen talking heads include Eugene Volokh, Alan Gura, Adam Winkler, Gary Kleck, Dan Gross (Brady Campaign), Bobbie Ross, and me.

The production values of the film are very high; there is even a recreation of the 1946 Battle of Athens, Tennessee.

I thought it was a very good film, although as with any documentary, there were a few parts with which I did not entirely agree. (And I certainly don’t agree with everything that Ice-T has ever said.) I should point out one correction regarding me: the film identifies me as having a Ph.D., which is incorrect; I have a J.D.

Assaulted is currently showing in 16 theaters around the nation; if you would like it to be screened in your town, the website provides a form to request that. Congratulations to Executive Producer Kris Koenig for creating the first documentary about the Second Amendment to make it the screens of ordinary movie theaters. [...]

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Emmy award nomination–1912 Time Machine

For the sixth year in a row, Colorado Inside-Out’s annual Time Machine episode has been nominated for a Heartland Regional Emmy. (We’ve won three.) The category”Interview/Discussion – Program/Special.” In this episode (originally broadcast in July 2012), the Colorado Inside-Out political discussion program travels back to 1912.

Former Rocky Mountain News reporter Kevin Flynn turns in a stellar performance as Denver Police Commissioner George Creel. (Creel later served as President Wilson’s minister of propaganda during WWI.) Westword publisher Patty Calhoun plays the unsinkable Molly Brown. Dani Newsum is well-educated leader of the National Progressive League. I play the fictional Hobart Drizzlewhit, assistant designer of Denver’s new City Park municipal golf course.

In a few weeks, we will be taping a new episode to be broadcast on Friday, July 5. The new episode will be set in 1973, covering topics such as Watergate and the Yom Kippur Arab-Israeli War. In the 5-minute “postgame” segment (broadcast only on the Web), we will travel to the future, discussing the politics of a nation dominated by the fusionist Green Tea Party. [...]

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My Review Fear Itself by Ira Katznelson

has been published at

It’s not a favorable review–I argue that Katznelson grossly exaggerates the extent to which FDR was stymied from pursuing a progressive agenda by the power of southern Congressmen, and that he is unpersuasive in excusing some of Roosevelt’s worst policies on the grounds that the alternative was to put democracy in grave peril.

But the book is even worse than the review lets on. First, there are many times when the subject at issue cries out for the author to display at least a rudimentary understanding of economics, but he never does.

Second, and more important, while Katznelson’s prose is fine, the book is both a disorganized mess, with little apparent rhyme or reason as to which topics the author covers and in how much detail, and way too long. To take just one very minor but telling example of unnecessary detail that clogs the narrative, we learn that Sen. Theodore Bilbo favored “loud check suits and brash ties.” That would be relevant information for a biography of Bilbo, but what does it tell us about “the New Deal and the Origins of Our Times” (the subtitle of the book)? Overall, the book reads as if Katznelson and/or his research assistants gathered lots of information on a bunch of different topics from a particular historical period, and then basically dumped the information into the book, regardless of whether and to what extent it formed a consistent narrative. As long-time readers know, I think most books written by academics are too long, and this one, in particular, could easily have been cut by at least 40%.

On the other hand, for favorable reviews here is Kevin Boyle in the New York Times, and Robert Kaiser in the Washington Post. [...]

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Walter Hines Page bleg

What is the best source detailing the activities of Walter Hines Page (President Wilson’s Ambassador to the Court of St. James) in advising the British government about how to conduct propaganda operations in the United States, prior to U.S. entry into World War I?

How about for the general American view (during the 1920s) that American entry into WWI was a mistake, and the U.S. had been tricked by British business interests?



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Let’s Play Spot the Fallacies

From a review in the most recent issue of Reviews in American History:

Like most conservatives, Shlaes assumes a perfectly competitive marketplace in which the government can only make an unwarranted and counterproductive intrusion. This perspective leads Shlaes to discount the role of jobs programs such as the CCC and the WPA that contributed to the decline in unemployment from 22 percent in 1932 to 9 percent in 1937. By setting a standard in which a public program cannot provide real work and must be temporary, she forecloses the possibility that any government program could strengthen the economy. Because Shlaes’ position is roughly equivalent to a cancer researcher who refuses to count remissions from chemotherapy, Hiltzik easily rebuts her.

Outside these parameters, however, Hiltzik has his own problem. The New Deal did reduce unemployment, but it was ultimately World War II and the warfare/welfare state emerging out of it that has kept the rate down ever since. Although Hiltzik briefly acknowledges World War II’s role in reducing unemployment, both he and Shlaes actually suffer from parallel oversights: Hiltzik does not fully account for the military component of the intervention, and Shlaes does not count the welfare.

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MSNBC’s Harris-Perry on my gun research: “The minutia of . . . replicating data turned into a politically consequential battle that shifted the discourse on guns in America”

On MSNBC over the weekend, Melissa Harris-Perry had some very kind words to say about some of my research a decade ago on guns in early America and the errors of Michael Bellesiles’s Arming America:


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After a half-minute set-up, Harris-Perry discusses my work until about the 2:11 mark.

Here is the transcript of Harris-Perry’s comments:

[I]t`s not just sports where knowing the rules of the inside game can make all the difference. Let me take you to the original Nerdland, the academy, where inside fights rarely make the news, but sometimes the topics pack enough political heat to make professors into headliners. Take this scandal. In 2000, a remarkable piece of academic work was published by the then much respected Emory University historian, professor Michael Bellesiles. In his book, “Arming America,” he used hundreds of old documents to prove that gun ownership was uncommon in the 18th century. He went on to say that given the rarity of gun ownership, there is no way the Founding Fathers intended the Second Amendment to ensure individual gun ownership rights. It was a moment of triumph in the gun control debate, when data, not polemic, proved the point.

Except it was not true. In an epic academic takedown a year later, a law professor from Northwestern University, James Lindgren, went through hundreds of pages of Bellesiles`s footnotes and found that much of the data were falsified. In fact, there were far more guns in earlier America than Bellesiles claimed. And Professor Bellesiles resigned from his tenured job, and was stripped of his book awards.

But most damning of all, the research he`d hoped would make a case for gun control only served to bolster the

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U.S. Complicity in Katyn Cover-Up

Newly declassified documents reveal that the U.S. government concealed evidence that the Soviet Union was responsible for the Katyn forest massacre of several thousand Polish POWs. In all, over 20,000 Poles were killed in mass executions. The USSR had consistently denied responsibility for the killings until 1990. The newly released documents show U.S. officials were aware the Soviets were to blame as early as 1943, but kept quiet so as not to strain relations with the Soviets.

Documents released Monday and seen in advance by The Associated Press lend weight to the belief that suppression within the highest levels of the U.S. government helped cover up Soviet guilt in the killing of some 22,000 Polish officers and other prisoners in the Katyn forest and other locations in 1940.

The evidence is among about 1,000 pages of newly declassified documents that the United States National Archives released and is putting online. . . .

Historians who saw the material days before the official release describe it as important and shared some highlights with the AP. The most dramatic revelation so far is the evidence of the secret codes sent by the two American POWs — something historians were unaware of and which adds to evidence that the Roosevelt administration knew of the Soviet atrocity relatively early on.

The declassified documents also show the United States maintaining that it couldn’t conclusively determine guilt until a Russian admission in 1990 — a statement that looks improbable given the huge body of evidence of Soviet guilt that had already emerged decades earlier. Historians say the new material helps to flesh out the story of what the U.S. knew and when.

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“If you want this robe, you’ll have to pry it from my cold, dead hands”: Justices Retiring Later, Often Waiting for a Change in Presidents

As people discuss whether Justice Roberts avoided politics by siding with the left side of the Court or instead yielded to political pressure to change his vote, I want to point to an article that I posted on SSRN a couple of days ago.  It shows that Supreme Court justices do tend to act politically in one respect: They tend to retire or take senior status strategically to favor the party of the president who appointed them.

My co-author, Rafe Stolzenberg, and I also plot how much older the justices have become in the last half-century.


Figure 1

Means of Sitting Justices’ Age at Oath, Age, Eventual Age at Departure From Court, and Eventual Age at Death (in order listed) Versus Calendar Year
Note: Lines are fitted and smoothed by Cleveland’s locally weighted regression (LOWESS).

Note that, while the age at oath has changed little in the last 150 years, the age of the sitting justices and the eventual age at departure have both increased in the last half-century (the latter markedly).

We also made a large number of methodological improvements on prior work. For example, most studies had assumed that the longer justices served, the more likely they were to retire. If that were true, that would be a strange job. In most jobs, once people settle in, they are more likely to stay, rather than more likely to leave. Indeed, our analysis shows that it is not until justices reach their 25th year of tenure on the Court that an additional year on the Court makes them more likely to retire. Before that, each additional year of service makes them instead more likely to stay on the Court. Some of the odd results of prior studies on strategic retirement might in part reflect their using a linear [...]

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Justices Time Their Retirements According to Political Party

Do U.S. Supreme Court justices tend to try to time their retirements to help the political party of the president who appointed them? University of Chicago sociologist Rafe Stolzenberg and I have an article in the journal Demography that finally answers that question: Yes, justices do act politically when deciding whether to retire or take senior status.  One interesting finding is that since 1789 justices have been more likely to die in office when the party of the current president is different from the party of the president who appointed him.

Our paper, “Retirement and Death in Office of U.S. Supreme Court Justices,” can be downloaded at SSRN.

Here is the abstract [abstract revised after posting]:

In this study, we construct demographic models of retirement and death in office of U.S. Supreme Court justices, a group that has gained demographic notice, evaded demographic analysis, and is said to diverge from expected retirement patterns. Models build on prior multi-state labor force status studies and data on justices permit an unusually clear distinction between voluntary and “induced” retirement. Using data on every justice from 1789 through 2006, with robust, cluster-corrected, discrete time, censored, event history methods, we (1) estimate retirement effects of pension eligibility, age, health, and tenure on the timing of justices’ retirements and deaths in office, (2) resolve decades of debate over the Politicized Departure Hypothesis that justices tend to alter the timing of their retirements for the political benefit or detriment of the incumbent President, (3) reconsider the nature of rationality in retirement decisions, and (4) consider the relevance of organizational conditions as well as personal circumstances to retirement decisions.

Computing robust standard errors with adjustments for clustering by justice, we find that the odds that a justice will retire (or resign or take senior status) in

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