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.
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
RKV, you make an excellent point....state right to bear arms provivions of yesteryear and today reflect a concern for individual self defense.....leading to the easy conclusion that this right to bear arms wasn't just for saturday afternoon militia drill.
Posted by: Christopher A. George at July 14, 2006 03:47 PM
However, an argument could also be made that the self defense provisions of the state constitutions of that era argue that if the First Congress had intended that, they would have made it explicit. In my book For the Defense of Themselves and the State, I examine the evidence for and against that claim, and mostly conclude that the evidence is a little weak to prove intent, largely because the First Congress really didn't handle any of the Bill of Rights questions with any seriousness. This was a nuisance that they had to complete to satisfy some campaign promises.
Posted by: Clayton E. Cramer at July 14, 2006 04:57 PM
Mr. Cramer, You seem to forget the common law principle of self-defense. It is quite enough to handle the issue you raise, since English common law was the legal foundation of our country.
Posted by: RKV at July 14, 2006 07:45 PM
Professor Cornell's citation of Cruikshank in this context is astounding and may be deliberately disingenuous.
Let's review that case:
Blacks in Louisiana who had just obtained their 15th Amendment right to vote went down to the courthouse to do exactly that.
"Concerned" local whites, a mixture of state actors (local police and other officials) and private (Klan), hatched a plan to deal with this "horror".
They first disarmed the blacks (depriving them of their 2nd Amendment rights), and then launched three days of arson, murder and rape, culminating in burning down the "defiled" courthouse. Federal troops were sent in to restore order and the perpetrators put on trial for Federal civil rights violations, to wit:
* Deprivation of 2nd Amendment rights;
* Deprivation of 1st Amendment rights to peaceful assembly;
* Deprivation of 15th Amendment rights.
The Supreme Court in Cruikshank decreed that the Federal government had no right to prosecute these violations of rights, because only the state could protect the rights of it's citizens (Louisiana, fat chance that!).
The Cruikshank decision paved the way for horrific violations of equal protection and civil rights abuses later…and at least 4,000 lynchings.
Absolutely no part of the Cruikshank decision can be taken seriously today. If a state deprived it's citizens of the right to free assembly or voting, the US Department of Justice would stomp on them with both feet, and rightly so.
Yet Cruikshank remains a lynchpin of all gun control laws in the US, underpinning state-law violations of the 2nd Amendment. The California Attorney General as support for his state's laws violating people's 2nd Amendment rights has recently cited it. Morton Grove IL cited cases that rest entirely on Cruikshank in support of it's total handgun ban.
Cruikshank is one of the most evil decisions in US Supreme Court history, and caused more violence than perhaps any other. No serious legal researcher can take it seriously today and resting ANY argument on it is a sign of a very weak argument indeed.
Rather than negating a modern reading of 14th Amendment incorporation via Privileges and Immunities, Cruikshank is a case history supporting the original wisdom of John Bingham and his followers.
Posted by: Jim March at July 15, 2006 04:44 PM
Mr. Cramer, You seem to forget the common law principle of self-defense. It is quite enough to handle the issue you raise, since English common law was the legal foundation of our country.I didn't forget it. Oddly enough, the common law really provided less protection for self-defense than you think. It was quite common for people who killed in self-defense to be convicted, and have everything confiscated, and then have to appeal to the crown. Parliament explicitly changed this in 1532, during Henry VIII's reign. See here for a discussion of this.
Posted by: Clayton E. Cramer at July 17, 2006 06:04 PM