Debate on Saul Cornell's "A Well Regulated Militia"
Oxford Press has posted a debate between Saul Cornell and Mark Tushnet, relating to Cornell's new book.
I've read (albeit quickly) "A Well Regulated Militia" and, much to my surprise, rather liked it. The research is good, the style is excellent. The worst I could say of it is that he plays down information I would play up (and he, of course, might say the same of me). Since Cornell is, to say the least, on the other side, I found this a pleasant surprise. I learned something -- which is rare, after you've studied an area for 30+ years. He draws an interesting distinction between Blackstone's summary of self defense and its American evolution, for instance (Blackstone said that a person must be at risk of death, etc., whereas the American rule, which he traces to a particular case, became one must *reasonably fear* death, etc.. The first would require proof of an actual menace -- altho I'd assume it'd allow proof of things the defender did not then know -- while the latter requires a reasonable fear -- so unknown matters are irrelevant, but reasonable perception replaces a demonstration of fact).
His thesis appears to be--
1. Yes, the 2A is an individual right. (The first quarter of the book could have come straight from Steve Halbrook's writings).
2. But it was one originally linked to militia duty (he goes against 14th Amendment privileges &immunities incorporation).
3. Hence (and here is a problem for him) it is subject to extensive regulation.
As to (1), I think it marks a collapse of the collective rights position. When an advocate for gun control has to concede this and discard collective rights, the main defenses have been breached.
As to (2), largely correct (altho he plays down indications to the contrary, that to the early Americans the concept of self-defense lumped togther defense against tyranny and defense against criminals). But most the discussions were along the lines of militia-tyranny. After all, they had just fought a revolution. Nobody in 1787 was much worried about the new central government would disarm people in order to let street thugs rob them. That would have seemed idiotic. Only in the 20th century would it seem to make good sense.
As to (3), there's the problem. As a historian, Cornell need not be overly concerned here -- it deals not with history but what use a legal system makes of history.
I am sure that if we examined the historical record relating to first amendment freedom of the press, we would find it was all in the context of political expression. And the record relating to the establishment clause would mostly relate to the risk of Congress establishing a national church.
But when Bork suggested that the first amendment could be seen as protecting only political speech (i.e., not pornography, defamation, etc.), and Meese suggested that the establishment clause did not forbid government actions that promoted *all* churches without discrimination, they were strongly, and I think properly, criticized.
[UPDATE: I think both were properly criticized because, in my experience, freedom is easily lost and much more difficult to regain, and the framers, in the bill of rights, were seeking only to stake out the most important freedoms. Hence an expressly-guaranteed right should be protected to its fullest. Something expressly stated should be protected as stated, and not curtailed by an argument that the framers didn't stop to consider (at least in the limited written evidence we have at hand) this or that application.]
TrackBack URL for this entry:
to the early Americans the concept of self-defense lumped togther defense against tyranny and defense against criminals [emphasis added]
No kidding. Exactly what kind of professional police forces does Cornell think existed anywhere in the late 1700s?
Posted by: Kirk Parker at July 13, 2006 11:34 PM
I'd like to hear why you think Bork and Meese were properly critcized.
Posted by: George Lee at July 14, 2006 06:16 AM
I concur with Mr. Parker's comments. Further, it might be helpful to take a long look at state constitutions right to bear arms to settle the question of how the right was viewed with respect to self-defense.
Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. (enacted 1790, art. IX, § 21).
Vermont: That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).
Etc. It certainly was on the minds of some of the founding citizens of the original US states. Please also note the assertion that standing armies are dangerous to liberty. Let Cornell et al put that in their pipe and smoke it! These are modern constructions...
New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.Pt. 1, art. 2-a (enacted 1982).
Maine: Every citizen has a right to keep and bear arms and this right shall never be questioned. Art. I, § 16 (enacted 1987, after a collective-rights interpretation of the original provision).
My source was the ever helpful Eugene Volokh at http://www.law.ucla.edu/volokh/beararms/statecon.htm
Posted by: RKV at July 14, 2006 07:36 AM