Historian reviews Saul Cornell book
Historian Robert Churchill has a detailed review of Saul Cornell's recent book on the right to arms (Cornell's approach basically is that of DC in Heller). The critical parts:
" If I am reading Cornell correctly, he is arguing that early Americans believed that the right to keep and bear arms was guaranteed only to enrolled militiamen, and that it applied only to a single weapon per militiaman. If I have misunderstood him, I hope he will use part of his response to clarify. But if I have understood him correctly, then I think he has mis-conceptualized the civic right at the heart of the Second Amendment.
Cornell makes several arguments supporting this conception of the civic right. First, he asserts that colonial and state governments exercised a police power to regulate the possession of guns. Here, I submit, he has exaggerated the reach of the police power. For example, Cornell notes that early American law empowered constables to "take away the arms" of those guilty of the common-law crime of affray (p. 30). But the disarmament in question was authorized only temporarily for the purpose of bringing the offenders before a justice of the peace. When discussing regulation in the Jacksonian era, Cornell argues that several states expanded their use of the police power to prohibit "the sale or possession of certain weapons," and suggests that these weapons included both guns and knives. He specifically claims that Georgia and Tennessee passed "wide-ranging laws prohibiting the sale of pistols, dirks, and sword canes" (p. 142). There are two problems with Cornell's presentation of this material. The first is that Tennessee's statute applied only to Bowie knives, which clearly fell outside the scope of the right to keep and bear arms. The second problem is that Georgia's statute, which did apply to small pistols, was struck down as an unconstitutional infringement of the right to keep and bear arms in the 1846 case Nunn v. Georgia. Because Cornell never cites the case, it is difficult for a lay reader to discern the lack of balance in his presentation of the evidence. Cornell's assertions aside, there is little evidence that any colony or state exercised a police power to disarm citizens prior to the Civil War.
Cornell also asserts that pistols clearly fell outside of the constitutional protection afforded by the Second Amendment. He rests this assertion on the 1840 Tennessee Supreme Court Case Aymette v. State upholding the aforementioned statute banning Bowie knives. Cornell declares that "in the view of the Aymette court, the legislature enjoyed the widest possible latitude to regulate pistols" including the right to ban their possession (p. 146). But no such suggestion appears in the court's opinion. The court in Aymette declared that "the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.... The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision." The court found that Bowie knives were not of a military character, but made no mention or suggestion as to the status of pistols. Postbellum legal commentaries and judicial decisions applied Aymette's logic in support of the argument that some small pocket pistols lacked military utility and thus fell outside the Second Amendment's protection, but Cornell has read this postbellum doctrinal development into an earlier text."
Hat tip to Jon Roland....
UPDATE: David E. Young has a commentary blocked for some reason by the spam filter. I've added it in extended remarks below.
David E. Young writes:
Prof. Churchill praises Prof. Cornell's use of keyword searches to locate historical texts. Such searches as the basis for historical work are suspect because they can be overused to such an extent that the actual history gets lost in arguments about terms and text. This is exactly the case in dealing with the Second Amendment in general, IMHO. There have been so many extensive legal arguments about terms and text that the actual historical occurrences as well as the relevant period actors and their statements have been left by the wayside. This is how the actual Bill of Rights history of the Second Amendment has been largely disassociated from the text in a legal fray about military matters.
Keyword searches can be great but, in addition to the problem noted above, they can also lead to possible problems that result from careless selection of the keywords. Searching for the word "gun" in period documents would result in locating very few Second Amendment related texts from the Constitutional Era in documents relating to ratification and the Bill of Rights. I did not include an index entry for "gun" in my document collection for that very reason - the term was used perhaps three times in the thirty-thousand plus pages of relevant period sources. The term "arms" on the other hand was used extensively in those same sources. Prof. Cornell, who is also the director of the Second Amendment Research Center at Ohio State University, selected "gun" rather than "arms" as a keyword term for searches building the Center's digital document archive. This may be one of the reasons that the archive is filled with state militia laws. Since the Second Amendment is clearly the subject under consideration at the OSU Research Center, it certainly seems fair to ask, why specify "gun" searching for text in historical documents relating to an amendment that specifies "arms"?
One interesting thing about the review is its mention that Prof. Cornell's book is based on his law review articles published over the last five years. Prof. Cornell often seems to function more as if he were a legal advocate than a historian. He has been very opinionated about the subject with his articles published in what are clearly legal advocacy avenues. Prof. Cornell is also quick to take exception in opinion pieces to any major Second Amendment related development supporting rights. Prof. Cornell's bias is also evident in a posting in this blog about the setting up of a one sided Joyce Foundation funded symposium on the Second Amendment for the Fordham Law Review:
Prof. Churchill was critical of Prof. Cornell's interpretation of specific documents in the book. Extensive similar criticism of Cornell appeared in Churchill's generally excellent militia related article. I view Prof. Cornell's book as not about the Second Amendmet but rather about the organized militia. He skips very lightly over the history of the Second Amendment's development as part of the Bill of Rights, instead emphasizing military matters, discussions during later periods, and other things that are largely irrelevant for understanding the Founders' intent.