Lengthy debate on Parker

Wow, Prof. Cornell got totally pwn3d, to use the parlance of the interweb.

Cornell says:

When considering the text of the Second Amendment one must begin with the role of preambles in 18th century constitutional texts. The preamble states the purpose of the text, and is not simply a justification clause as some modern scholars have suggested.

He backs that up with some quotes from Blackstone that seem to spell out Gene Volokh's positition (the position Cornell is trying to refute):

Here is what Blackstone says about preambles or proemes: If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the fame nature and use is the comparison of a law with other laws, that are made by the fame legislator, that have some affinity with the subject, or that expressly relate to the fame point.

That's exactly what Gene says: The justification clause can help clarify the the operative clause, but can't trump the plain meaning of the operative clause.

It takes a lot of chutzpa to say you're going to refute someone's position and then quote from a source that actually takes the position you are supposedly refuting.

Cornell quotes Scribble Scrabble (without an actual reference) saying:

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and may continue to do so till the legislature shall think fit to interdict.

Gura et al do a good job of tracking down Scribble Scrabble as the source of the quote, and pointing out that the language Cornell quotes is discussing the Massachusetts Bill of Rights, five years before the Federal Bill of Rights was ratified, but they missed the most glaring dishonesty in Cornell's quote.

The relevant provision in the Massachusetts Bill of Rights reads as follows:

“The people have a right to keep and to
bear arms for the common defence. ..."

So Cornell claims that his quote shows that the 2nd Amendment to the Federal Constitution was limited to "a right to keep and to
bear arms for the common defence" but the quote refers to a provision from a different constitution, which explicitly makes the limitation that he wants to read into the 2nd Amendment.

That guy is a real piece of work!

I would like to add something useful, but I have come to the conclusion that the Petition is a big joke and not worthy of my time or the Court's time but I hope they take it in spite of the District's ineptness if only to teach them a lesson.

Well I did find something for Saul Cornell to chew on for his comment "bear arms" only has a military connotation in the 18th century."

“The same author observes elsewhere; "the very use of weapons by such an assembly, without the king's license, unless in some lawful and special cases, carries a terror with it, and a presumption of warlike force, etc." The bare circumstance of having arms, therefore, of itself, creates a presumption of warlike force in England, and may be given in evidence there, to prove quo animo the people are assembled. But ought that circumstance of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself? In many parts of the United States, a man no more thinks of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.” Tucker, Blackstone’s Commentaries, Vol. 5, Note B. Concerning Treason (1803).

St. George Tucker of course relates that bearing arms has a civilian meaning."