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More debate over St. George Tucker
A few months ago, Northwestern Univ. Law Review Colloquy published my paper on the lecture notes of St. George Tucker. One of the points I made was that the Stevens' dissent in Heller had picked up on an article by Saul Cornell that argued Tucker was a collective-rights type, and in fact this had greatly misconstrued his lecture notes.
I just noticed that Prof. Cornell has published a response in Colloquy.
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Cornell wrote:
>It is hard to see how one can claim to
be an originalist if one rejects the Founders’ interpretive techniques
I thought the difference between original intent and original public meaning was that the original public meaning should prevail if the law was drafted with the intent of having a legal effect different than what the people would interpret it to have. Thus it's not the founders' interpretive techniques that matter, but rather the peoples' interpretive techniques.
Furthermore, if the plain meaning of the text is clear, then there is no need to resort to original intent. While if I were extremely generous I might say that the meaning of "bear arms" could be reasonably disputed, I cannot see any reasonable dispute of whether the Second Amendment protects the right to KEEP arms without federal government permission. Even if the right is for militia purposes and not for personal self-defense, the right (though not necessarily the amendment) must have been understood to protect from state government as well as federal.
Cornell makes the usual mistake going on and on trying to show that "bear arms" had a militia meaning and that the Second Amendment had a militia purpose. Those facts are not disputed. The dispute is whether they have an EXCLUSIVELY militia meaning. I didn't notice Cornell give any significant evidence of that. The Pennsylvania minorities use of "bear arms" for "killing game" and "for defense of themselves", among others, should put that to rest.
Cornell should have read the first sentence of Tucker's quote: "If a State chooses to incur the expence of putting arms into the Hands of its own Citizens for their defense..." This says the state has the power to decide to arm the militia or not.
Towards the last, after the quote of the 2nd Amend.: "To this we may add that this power of arming the militia, is not one of those prohibited to the States..." Again, Tucker is saying that the states MAY, constitionally, arm the militia.
Add to this David Hardy's quotes of Tucker and you get the full meaning. Thus Cornell is full of it.
As usual Cornell is dancing to the Joyce Foundation's tune.
He should have read this article. The Justices did.
Clayton E. Cramer and Joseph Edward Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J. L. & Pub. Pol'y 511 (2008). This article is cited by Justice Scalia in the majority opinion in D. C. v. Heller (U. S. Supreme Court 2008).
The above is entirely about whether Congress can preempt state militia laws. There is a surprising amount of caselaw on that point, and it all says that Congress can preempt state militia laws. Saul Cornell undoubtedly knows this but hopes the pro-gun side won't bring it up. He professes to believe that the 2nd Amendment is a feature of militia law. Attack his theory directly: confront him with the caselaw of the militia powers, all of which contradicts his theory.
A truly superlative example of someone getting right to the heart of the matter by engaging in picky legal wrangling about legal professionals' legal theories of legal interpretation.
It is also a perfect example of why I prefer to stick to American history and cut out all of the middlemen when dealing with the Second Amendment's development.
For those who prefer the latter approach, I am currently disassembling the historians' Heller amicus brief, which Prof. Cornell signed, over at On Second Opinion blog:
http://onsecondopinion.blogspot.com
Enjoy!