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: Clayton Cramer comments on comments about lack of a professional police force -- since my antispam software for some reason stopped his comment, I've added it to "Read more," below]
[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.]
1. There are no professional police forces that early. There are night watches which many cities required every adult male to serve on--rather like militia duty. This is a tradition that, in Boston, goes back to the first years of settlement.
2. We don't have to wonder what the feelings of the Framers were about the establishment clause. As I mention here, Presidents Jefferson and Madison (the foremost freethinker of the time, and the author of the Bill of Rights, respectively) allowed government buildings to be used for church service, but Congress actually reserved one section of each township in the Ohio Territory for the support of whatever church the majority of the township wanted. This was still operative as late as 1820, well after Ohio statehood, but those parcels were still being sold to fund churches.