Mail list debate over Saul Cornell's theories

[debate between Saul Cornell and various supporters of sophisticated collective rights. The supporters' remarks are set off with ">" signs, Clayton's are just plain text]

I. In response to Nancy Isenberg

> >

[Hardy adds: following is from a supporter of SCR]

> The H-SHEAR discussion of Saul Cornell's "A Well-Regulated Militia" has in
> so many ways failed to address the arguments of the book. Clayton Cramer's
> listing of excerpts from state constitutions, and his subsequent claim that
> this proves an individual right to carry and own guns, is not sufficient
> evidence. He merely asserts that the language is explicitly a defense of an
> individual right, and then quotes, as an example, Indiana's state
> constitution (1816): "That the people have a right to bear arms for the
> defense of themselves, and the state." There is nothing here that
> explicitly endorses an individual right, and in fact, the language suggests
> that the right to bear arms is intended to be used for protecting
> "themselves" and the state. If the constitution stated that every
> individual has the right to bear arms for self-defense, then I would agree
> that the language is explicit.
>

[Hardy adds: the following is Clayton]

If the "the people" refers only to a collective right, then does that
mean that Indiana Constitution Art.
I, sec. 8: "The rights of the people, to be secure in their persons,
houses, papers, and effects, against unreasonable searches, and
seizures, shall not be violated" was not an individual right, but was
only intended as a collective right?

Keep in mind that clauses like the Indiana Constitution of 1816 has were
quite common in other state
constitutions. Kentucky's 1792 and 1799 Constitutions guaranteed "that
the right of the citizens to
bear arms in defense of themselves and the state shall not be
questioned." And in Bliss v. Commonwealth
(Ky. 1822), the Kentucky Supreme Court struck down a ban on carrying of
deadly weapons as being
violation of that right. They thought it was an individual right.
Similarly, the Republic of Texas (1838) and
the State of Texas (1845) constitutions used similar language, and the
Texas Supreme Court ruled that
the right was individual in State v. Cockrum (1859)--and the decision
makes it very clear that it
wishes otherwise.

[Hardy adds: below is another comment from a supporter of SCR]

> Cramer does not seem to recognize that the right of self-defense began as a
> common law right. The United States never rejected English common law, and
> jurists relied on common law categories and reasoning to define state and
> federal law. But the common law right of self-defense was not protected by
> the federal constitution, nor was it originally seen as inherent in the
> second amendment. Nor was it explicitly defined as an individual right:
>

[Clayton follows]

And you know this how? The Second Amendment, as introduced by Madison,
had three separate clauses.
The conscientious objector clause, after considerable discussion, was
dropped. The "well-regulated militia"
provision was subject to considerable discussion as well. The "right of
the people to keep and bear arms"
clause was effectively not discussed? This would suggest that whatever
it meant was uncontroversial to
members of the First Congress. But what did it mean? The very few
direct contemporaneous statements of
what it meant--from people like Tench Coxe, and letters such as
Nasson's--indicate that it protected a
general right of the population to be armed. There are no direct
contemporaneous statements that claim
otherwise--only inferences that are far more nebulous than the direct
statements that the right was individual.

In the two decades after ratification, we have direct statements from
St. George Tucker and William Rawle
that indicate it was understood as an individual right to be armed (even
if the focus of the discussion is
the ability to resist tyranny). There is one decision in the following
decades (Aymette) that acknowledges
that the right is individual, even if for a collective purpose (and
based on the Tennessee Constitution's
explicitly collective purpose clause). There is one decision (a 1-1-1
split of the Arkansas Supreme Court
in State v. Buzzard) that claims that the right is not individual at
all. All the other decisions of the antebellum
period either explicitly acknowledge the right is individual (although
subject to reasonable regulation), or
fail to reject the individual right claim. In some of those decisions,
it would have greatly simplified the job of the
judges writing those opinions to simply say, "This was never intended to
be an individual right. It is a right of the
state to organize a militia, or a right of the people to collectively
overthrow the government--but not a right of
an individual to keep arms, or to carry them." And yet, except for
State v. Buzzard, this argument does not
appear in ANY antebellum court decision.

> the common law right of self-defense protected the right of individual men
> to protect their wives and children from physical harm, assuming that adult
> women did not exercise the same right. The expansion of this right
occurs in
> the 19th-century as part of a much larger debate on legal and civil rights.

When you say, "expansion of this right," what do you mean? Blackstone's
Commentaries clearly recognized this right.

> Besides, Cramer fails to engage in the more important issue of how this
> rights language was interpreted in the courts. Here we really begin to see
> what this language meant. Constitutions are not revealed texts, with one
> literal meaning obvious to all. Cramer merely lists a series of state
> opinions, and again asserts that they all endorse his view. The larger

No, I did not say "that they all endorse [my] view." I was careful to
point out that one does not (Buzzard),
one uses a collective purpose argument but still sees an individual
right (Aymette), and several do not explicitly
take a position.

> political and legal context is missing. The Tennessee Constitution was
> revised, changing the language from freemen to free white men, because many
> states were debating whether free black men should be granted basic civil
> rights of suffrage, jury service, and militia service. Many states began
> inserting "white" into their constitutions. Cramer's argument
simply
> ignores the larger context, and then jumps to the conclusion that this must
> imply that bearing arms was an individual right.

Actually, I pointed out that it was the same revision of the Tenn. Const. that took away the right of free blacks to vote. You might want to re-read my argument.

> Southern states passed a series of other laws to control free blacks:
> restrictions in literacy, gatherings in public places, moving from state to
> state, voting, jury service, intermarriage with whites. Before the Civil
> War, several southern states passed laws banning slaves from carrying guns,
> and in 1831 (the year of the Nat Turner rebellion) three states (Florida,
> Virginia, and Maryland) prohibited free blacks from carrying firearms. In
> Delaware, the new law allowed for free blacks to carry arms if they were
> licensed by a court. These laws prove that an individual's right to bear
> arms was not absolute. It is not until 1848 that jurists begin to make the
> argument that free blacks cannot bear arms because they are not citizens.

This isn't correct either. North Carolina's Supreme Court had already
taken this position in State v. Newsom (1844).

> Does Cramer actually think that the right to bear arms was the only part of
> our constitutional history that did not change over two hundred years?

No, and I have not said that. The understanding has definitely changed
over time, and continues to change. But the original meaning of 1791 doesn't change because courts
decide that it is no longer convenient.

>The larger problem is that this discussion fails to address Cornell's
> argument about civil rights. What is most compelling about Cornell's
> argument is that he places the discussion of the second amendment within a
> broader historical context. He explains the political fears, issues, and
> understandings that informed the debates and judicial opinions in the 18th
> and 19th centuries. The key to Cornell's interpretation is that the issues
> connected to the second amendment cannot be reduced to a simple dichotomy:
> collective versus individual rights. This dichotomy is a modern invention.
> That is why Cramer has wasted so much ink (or, in this case, cyberspace)
> defending his ahistorical argument.

What is the modern invention is the notion that the guarantees of the
right to keep and bear arms was a
collective right. With the single exception of the Buzzard decision,
there is no final decision of any federal
or state court or any recognized constitutional commentary published
before 1900 that found that the right was collective--and dozens of
examples that acknowledge that the right is individual in nature.

The key to Cornell's interpretation is ignoring the majority of
antebellum decisions and constitutional
commentaries that do not agree with him.

II. In response to Bob Arnebeck

> During the Vietnam War and now during the current war, anthropologists
> objected to the use of anthropologist by the military in its effort to
> fight insurgencies. Perhaps historians should organize against this
> holy pursuit of the original intent of the men who wrote the
> Constitution. Clayton Cramer quotes Tench Coxe who, in my opinion, was
> a lightweight gadfly whose intent was to attract attention to himself.
>
Why did
> I do enjoy Cramer's pursuit of detail but it comes always with an edge,
> cutting rightward in the current debate on guncontrol. I too am a

Absolutely. I am the only person engaged in this discussion about
Cornell's book with any political
agenda. :-)

> historian of detail, 1790s Washington and Philadelphia, and I have
> never found that the Bill of Rights had any relevence to events of that
> day. Morris and Nicholson relied on English common law to keep the
> sheriff at bay. When Quakers tried to ban theatres after the yellow
> fever epidemic, no defender of the players mentioned the first
> amendment or free speech. As for the militia, Capt. James Hoban used it
>
Because the First Amendment didn't apply to the states? Perhaps because
public safety took
precedence over a commercial activity?

> to enforce his control of the white laborers in Washington. No worry of
> slave rebellion. When the militiamen threw away weapons running from
> the British regulars in 1814, slaves collected the guns and returned
> them to the white folks. The real question we should examine is not
> what the Bill of Rights meant to people in the Early Republic, but
> when, if ever in that period, were they taken seriously.

How about when courts actually used the Bill of Rights and similar state
provisions to strike down
laws? For example, I've mentioned the various state weapons control
laws that were either struck down
during this period, or where the courts acknowledged that the laws were
limited by those right to
keep and bear arms provisions. Those weapons cases aren't the only
examples of courts using either
the federal or state bill of rights as a limit on government power. For
example, Ely v. Thompson, 3 A.K. Marshall (Ky.) 70, 75 (1820)
,
struck down a state law that allowed whipping of a free black man
because it violated Art. X, sec. 15
of the Kentucky Constitution, which guaranteed a right to due process.

III. In Response to Nathan Kozuskanich
>
> Mr. Cramer argues that there was "an official, government directed
> militia" in Pennsylvania, and points to the records of the Committee of
> Safety as evidence. This is simply not true. You will note that these
> men are continually referred to as "associators." They were not
a
> state-sanctioned militia, they were men who volunteered to associate
> themselves into military units (as they had done since Ben Franklin
> proposed the idea in 1747 to help defend the province in light of Quaker
> pacifism that was blocking the passage of a militia law). County-level
> committees of safety throughout Pennsylvania raised men into militia
> units and gathered supplies. Men who did not join associations were
> required to submit their guns to the committee. Those who did not

I am still waiting for some evidence that there was no militia law in
Pennsylvania in 1775 and 1776.
So far, I have seen nothing that repealed the 1757 militia statute.
Even if there was no actual
militia law, you will notice that Associators were given orders and
supplied with gunpowder, lead,
and some muskets as though they were the official militia of
Pennsylvania. The fact that they were
voluntary organizations characterized as Associators does not preclude
the possibility that there
was a militia law in effect--using enthusiastic volunteers rather than
those who were forced to do
their duty would certainly have been preferable, even if that option
were available.

I notice that the Massachusetts Provincial Congress in its first few
months frequently made "requests"
not orders, perhaps because they were not exactly the legal government
of the colony at the time.
I wonder if there might have been similar motivations in Pennsylvania.

If Pennsylvania had no militia law until 1777--two years into the
war--you have to ask why? Was
there no need for one up to that point? Or were they still operating
under the 1757 militia law?
> render their guns to the Collectors of Arms, or who appeared to be
> "possessed of good firearms, and [did] not deliver them" were given
a
> citation and required to answer for their conduct before the Committee
> of Safety (17 July 1776, /The Pennsylvania Gazette/). Personal
> firearms became subject to the needs of a community shaped by a
> commitment to safety and defense. Indeed, there was no room anymore for
> the pacifist Quaker paradigm which allowed citizens to refuse to take up
> arms for reasons of religious conscience, nor could individual's escape
> relinquishing their property to the needs of the community.

Different colonies responded to problems in different ways. A number of
colonies ordered
Tories to turn over their guns. Long guns because they were needed for
the poorer members
of the militia, and handguns probably because of a lack of trust. On
the other hand, North
Carolina requested that pacifist sects offer their guns for sale--but
are they very explicit that
this is a request, not an order.

> Organizing the associators in Pennsylvania fell to extra-legal bodies
> like the Conference on Committees, not the officially elected Assembly.
> The 1776 Constitution was written by men operating under the sanction of
> these extra-legal bodies who sought to overturn both British and Quaker
> rule. The Quakers had not provided adequate protection to the peoples
> of the frontier, and the Whigs in 1776 wanted to compel service from
> everyone. Mr. Cramer says "so what?" In so doing, he is ignoring
the
> very reason for the Revolution in Pennsylvania and the context for the
> words "defense of themselves" in the 1776 Constitution.

You would think that if the right to arms clause was related only to
militia duty that they might have
brought them together. You will need something more than "perhaps these
are connected" to
establish that the right to arms clause was tied to militia duty only.

> I agree with Mr. Cramer that "the desire for a militia does not preclude
> individual self-defense being recognized as a right." People owned guns
> and used them outside of the militia to hunt, to protect themselves. To
> argue otherwise would be foolish. But individual self-defense is not
> what they were talking about in Pennsylvania---they were talking about a
> militia. There is no evidence that they were trying to protect an
> individual right, which they would have assumed was guaranteed under
> natural and common law. They were talking about compelling militia
> service, and they achieved the ability to compel that service with the
> 1776 Constitution. So, we should stop using their words to support the
> Standard Model.

How do you know that they were talking about compelling militia
service? They do discuss compelling
militia service--but in sec. 8, and they are quite clear about that.
Yet between sec. 8 and sec. 13
(the bear arms guarantee) we have a guarantee about individual rights in
criminal prosecutions (sec. 9),
protections against unreasonable search and seizure (sec. 10), right to
trial by jury (sec. 11), freedom
of speech and of the press (sec. 12). Perhaps sec. 9 is only about the
right to criminal prosecutions
arising from militia duty--the overriding concern of the day, from what
you tell us.

> 2. "Bear Arms"
> Mr. Cramer argues that "to bear arms meant to carry them. It doesn't
> require them to be part of a militia duty." That would mean that under
> the 1790 Constitution conscientious objectors could be compelled to pay
> a fine for not carrying arms outside of the militia. That does not make
> sense to me. I don't see how "bearing arms" in Art. VI., sec.
2 can be
> interpreted as anything but military. Are we to assume, then, that they
> use the word differently in Art. IX, sec. 21?

The objection of pacifists in Pennsylvania to bearing arms was to
violence against other people--even
in self-defense. Those whose objection was to violence in any context
were given an exemption from
militia duty by payment. Someone who didn't object to being armed for
self-defense but objected to
serving in the militia didn't enjoy that same exemption.

If "bearing arms" is used in the common sense of both words "carrying
weapons," then it means
exactly the same thing in both places--the carrying of weapons. That
could be militia use, it could be
for personal self-defense, it could be for hunting. Consider how the
1790 Constitution uses the
word "citizen" in Art. I, sec.2, sec. 3, Art. IX, sec. 7, sec. 20, and
sec. 21. In Art. I, sec. 2 and 3, it
is defining who may vote or hold office. In Art. IX, sec. 7, it is
defining who may speak or write,
in sec. 20, who may assemble, and in sec. 21, who may be armed. By the
reasoning above, if "bear arms"
refers only to a militia context based on its use in Art. VI, sec. 2,
then it seems equally valid to
conclude that if "citizen" in Art. IX, sec. 21 is in a militia context
only, then the right to speak or write
freely, the vote or hold public office, or assemble, was similarly
limited to members of the militia. But that's
clearly absurd; words have individual meanings. Remove them from their
context, and they still have
a particular meaning, and do not carry the rest of the sentence with them.

> I have searched the Early American Newspapers database, Early American
> Imprints database, and the Library of Congress' U.S. Congressional
> Documents and Debates database for the term "bear arms" from 1776
to
> 1791. If we discard reprints of the Bill of Rights and all references
> to the text of the Second Amendment in Congressional debate, irrelevant
> foreign news, and reprints of the Declaration of Independence we see
> that the phrase is overwhelmingly used to describe military action. In

Perhaps because most of that period involves a war?
I've already pointed out that Tench Coxe used the phrase "right to bear
their private arms" in his
exposition of the meaning of the Second Amendment. That's a pretty
significant use, especially
since Madison wrote a letter to Coxe thanking him for his effort. More
importantly, the phrase
"right of the people" used in the Second Amendment suggests that the
right was not limited to
the militia or militia duty--and that phrase is used in many of the
ratifying convention requests for a
Bill of Rights to refer to rights that we generally recognize as
individual today. Did Madison and
the First Congress use "bear arms" and get confused about whether the
right belonged to "the militia" or
"the people"?

> is very strong evidence that challenges the Standard Model's assertion
> that "bearing arms" was predominately understood in individual terms.
I
> am not arguing that no one believed that a person had a right to defend
> himself, but that this right was protected under common, not
> constitutional, law.

Oddly enough, the Senate debated adding "for the common defence" to the
Second Amendment, which
would have cleared up the question in your favor--and decided not to add
it. Since most of the state
requests for a right to keep and bear arms were explicitly individual
(such as New Hampshire's), and
Madison himself described these as "private rights," you will need a
pretty strong piece of evidence
that the right was not understood as individual.

> As for Mr. Cramer's assertion that the Standard Model is vindicated by
> history, I suggest (since this is where the discussion all began) that
> he re-read "A Well-Regulated Militia" and respond to the abundant
> evidence Cornell provides to contradict that claim. For example, how

I confess that I haven't read it yet. I've seen enough interviews with
Cornell, and exchanged enough
email that I didn't think it was going to be worth my while. William &
Mary Bill of Rights Journal
has a pretty devastating review of it, pointing out that Cornell's
selective use of sources demonstrates
its political objectives. For example, using St. George Tucker's
lecture notes to show that the
Second Amendment protected only a militia right--while neglecting to
mention that Tucker's published
edition of Blackstone is explicit that the Second Amendment guarantees a
right "without any qualification
as to their condition or degree...." Or neglecting to include William
Rawle's _A View of the Constitution_.

> does he explain the outcome in the Pennsylvania case from 1798 discussed
> in the book? Why did nobody think to argue that the right to use a
> pistol in self defense was protected by the state constitution? What
> about Joseph Story's commentaries? Benjamin Oliver? What about Amyette
> v. State (1840)? I repeat my comment from my last post: one of the main

Story is a strong argument that the right was not limited to the
militia, or to militia duty. To quote from
Justice Story's _Commentaries on the Constitution of the United States_:
"The right of the citizens to
keep and bear arms has justly been considered, as the palladium of the
liberties of the republic; since
it offers a strong moral check against the usurpation and arbitrary
power of rulers; and will generally,
if they are successful in the first instance, enable the people to
resist and triumph over them." Not "right
of the militia." Even more importantly--how can this right be exercised
if arms are kept in government
armories? I would agree that Story is focused on the tyranny overthrow
model--which does not preclude
an individual self-defense right. But it still requires that the
citizens be armed to perform the tyranny
overthrow action.

And that is the position of Aymette as well. While the purpose is
collective (because the Tennessee
Constitution had "for their common defence" in its RKBA clause), Aymette
clearly states that
the right is individual, and must be, to make the collective purpose
possible. "

"As 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. If the citizens
have these arms in their hands, they are prepared in the best
possible manner to repel any encroachments upon their rights by
those in authority."

This is hardly an argument that would allow disarming the population.

I should point out that Aymette is actually somewhat atypical of the
antebellum
decisions, anyway, because it is based on an explicitly "for their common
defence"
provision. I've had enough conversations with Cornell to realize that he
simply
isn't interested in decisions that don't fit his thesis. As David T. Hardy's
recent review of Cornell's book points out, "AWRM then informs us, without
citation, that most courts of the period rejected an individual view of
the right
to arms. That would have come as news to the Bliss, Nunn, Chandler, Reid,
and
Andrews courts. A standard that only pertained in Arkansas--to the extent
one
opinion of a court split 1-1-1 can be considered a standard--is treated as
the
majority state rule."

The problem is that "A Well-Regulated Militia" makes this claim by
ignoring the majority of the
decisions of the period, and claiming that an extreme minority position
is actually the majority!
And as I pointed out above, AWRM appears to have skipped over prominent
constitutional
commentaries from people who were prominent figures in 1790s
America--people like Tench
Coxe and William Rawle--to find this collective right that otherwise
left no tracks.