Monday, December 24, 2012

Saul Cornell on the Second Amendment

Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.

In Wednesday's New York Daily News he published an op-ed entitled "The Second Amendment You Don't Know."  He argues that the founders' original intent in passing the second amendment was "as much about regulating firearm possession as enabling it."  Here is a taste:

In 2008, a closely divided Supreme Court abandoned more than 70 years of precedent and for the first time in American history affirmed that the Second Amendment is about a right to have a handgun in the home for self-defense. Lost in most of the commentary then and now is that this is almost the exactly opposite of what James Madison, the primary architect of the amendment, intended, and is hard to reconcile with the way most ordinary Americans would have read it in 1791. 

In 1776, most of the original state constitutions did not even include an arms-bearing provision. The few states that did usually also included a clause protecting the right not to bear arms. Why? Because, in contrast to other cherished rights such as freedom of speech or religion, the state could not compel you to speak or pray. It could force you to bear arms. 

The founders had a simple reason for curbing this right: Quakers and other religious pacifists were opposed to bearing arms, and wished to be exempt from an obligation that could be made incumbent on all male citizens at the time. 

Saul Cornell
When the Second Amendment is discussed today, we tend to think of those “militias” as just a bunch of ordinary guys with guns, empowering themselves to resist authority when and if necessary. Nothing could be further from the founders’ vision. 

Militias were tightly controlled organizations legally defined and regulated by the individual colonies before the Revolution and, after independence, by the individual states. Militia laws ran on for pages and were some of the lengthiest pieces of legislation in the statute books. States kept track of who had guns, had the right to inspect them in private homes and could fine citizens for failing to report to a muster. 

These laws also defined what type of guns you had to buy — a form of taxation levied on individual households. Yes, long before Obamacare, the state made you buy something, even if you did not want to purchase it. (The guns required by law were muskets, not pistols. The only exceptions to this general rule were the horsemen’s pistols that dragoons and other mounted units needed.) 

The founders had a word for a bunch of farmers marching with guns without government sanction: a mob. One of the reasons we have a Constitution is the founders were worried about the danger posed by individuals acting like a militia without legal authority. This was precisely what happened during Shays’ Rebellion, an insurrection in western Massachusetts that persuaded many Americans that we needed a stronger central government to avert anarchy.

Many people think that we have the Second Amendment so that we can take up arms against the government if it overreaches its authority. If that interpretation were correct, it would mean that the Second Amendment had repealed the Constitution’s treason clause, which defines this crime as taking up arms against the government. In reality, in the first decade after the Constitution, the government put down several rebellions similar to Shays - and nobody claimed that they were merely asserting their Second Amendment rights.

Cornell also discusses the Second Amendment in this article in Dissent.

17 comments:

Joshua Wooden said...

This post has sent me on a reading spree - I've now read six separate articles on the gun control debate in light of Sandy Hook.

Interesting. Do you know of anyone that has pushed back on this? Do you have any push-back or do you think the argument is sound?

Joshua Wooden said...

By "this," I mean the original article you posted. I am not speaking about the gun control debate in general.

Tom Van Dyke said...

Try this.

http://www.volokh.com/posts/1160770321.shtml

2006:

Ohio State history professor Saul Cornell is the author of the new book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), and of the law review article “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings,” 47 W. & M. L. Rev. 1123 (Feb. 2006). Cornell is a talented writer and researcher, but his treatment of some topics is extremely misleading.

In a new draft article, "St. George Tucker’s Second Amendment: Deconstructing 'The True Palladium of Liberty'," Stephen P. Halbrook takes the reader step-by-step through Tucker's monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker's Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell's thesis.

Jimmy Dick said...

Akhil Reed Amar covered the Second Amendment in America's Constitution on pages 322-326 and offered a good analysis of it. The second amendment does not translate well in to modern society because the emphasis was on a militia. Individial ownership of firearms was not that much of an issue due to the nature of frontier living, but the nature of an armed mob did present a challenge to the government. The need for gun control as we are discussing it today was not an issue in the early days of this nation.

It did become a problem later and the states did take steps to initiate gun control by 1813 when Kentucky passed a law prohibiting concealed weapons. Other states followed suit. Society changed and as a result so did the people's understanding of gun control.

To be honest, looking back at the early days of the Republic will not provide anyone with a definitive answer beyond the fact that individual gun ownership was allowed, but that the government did have the right to regulate firearms and ownership. Therefore the Second Amendment is not the definitive answer either side looks for.

American history does show us that it will always be up to the people of the time to interpret the Constitution and to make the government work for them. So if we today decide to ban assault rifles, etc., then that can be done.

Tom Van Dyke said...

Even Scalia recently intimated that the constitution permits gun control.

http://www.huffingtonpost.com/2012/07/29/antonin-scalia-guns_n_1715969.html

However, the question at hand is a one of Saul Cornell's scholarly malpractice as a "public intellectual."


http://law.bepress.com/cgi/viewcontent.cgi?article=8710&context=expresso

Debunking the individual-rights “hijackers” of the Second Amendment, Professor
Cornell refers to “the often-quoted passage describing it [the Second Amendment] as the
‘palladium of liberty’” at least five times,
but strangely fails to provide the actual quotation or to acknowledge its contents. It would be worthwhile to do so at the outset in order to determine the extent of the constitutional hijacking by scholars who read the
Second Amendment as protecting individual rights...


Etc.

Then there is the question of a "living" vs. a "fixed" Constitution. Cornell's deck is rather stacked there as well.

http://smallestminority.blogspot.com/2011/06/saul-cornell-turns-up-again.html

Jimmy Dick said...

We have a living Constitution. That is the only way this country is able to survive over the long term. Times change and so do the needs of the people it serves. What I think is remarkable is that the Constitution has had enough flexibility for the crisis situations we have faced over the centuries. Most of the reason for that is that the succeeding generations realized that it had to work for the people of their time and not be fixed to the dead hand of the past.

John Adams and Thomas Jefferson remarked upon this after their presidencies. They understand some things better than most of the men at the Constitutional Convention and they weren't even there. Jefferson wanted strict constitutionalism, but in order to make his ideas a reality he realized that he couldn't adhere to that concept so he altered his stance. Jefferson always put his interpretation of the Revolution (idealism) ahead of anything else including the Constitution. He made it fit his ideas, not the other way around.

Adams thought it provided the basis for the nation to work and he was right. He like so many others just didn't provide for the role ideas played in the Revolution which I think is why Jefferson's ideas have been seen as the guiding force of the US.

Tom Van Dyke said...
This comment has been removed by the author.
Tom Van Dyke said...

We have a living Constitution.

...

Most of the reason for that is that the succeeding generations realized that it had to work for the people of their time and not be fixed to the dead hand of the past.

John Adams and Thomas Jefferson remarked upon this after their presidencies.


“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."---Jefferson

As for John Adams, he had no part in framing the Constitution. I prefer Mr. Madison.

""As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."

Jimmy Dick said...

John Adams had a huge role in the creation of the federal constitution. Read Thoughts on Government and the original Massachusetts constitution he wrote.

Tom Van Dyke said...

Yes, Jimmy, your point is at least arguable in that light, although John Adams remains one of the least quoted Founders then and now.


And regardless, although "living" Constitutionalists may control the levers of government by brute force in the present day, any claim to the Founders' sanction is nonsense.

Let's just be honest about it.

Jimmy Dick said...

That would also mean those that think the Constitution is not a living document do not have the sanction of the Founders either. What we have here is differing political ideologies (Adams and Jefferson discussed that word) here in the modern era. The party not in power always accuses the party in power of using brute force. That's odd seeing as how the party in power gained power via a democratic election.

Tom Van Dyke said...

Show the Founders support for a "living" Constituion. I do not think you can show your work.

See also

http://americancreation.blogspot.com/2010/05/joseph-j-ellis-when-historians-attack.html

Jimmy Dick said...

To begin with we have the amendment process and the way it works. The creation of the original amendments and the fact that the 1st Congress deliberately decided not to incorporate them into the Constitution, but rather added them onto the document makes the document a living document in two ways. One, it can be changed and the process is delineated within it. Two, the decision to place the amendments as a postscript to the original document reflects the idea of the 1st Congress as to the changing of the document and how to do it. See Anhil R. Amar’s America’s Constitution, ppg. 458-463.

In addition to this, Jack Rakove has this to say about the subject of originalism, “Well, in one sense, having that difference of opinion was absolutely essential to the very nature of the book I was writing. In the first chapter, on the perils of originalism, I paraphrase John Marshall's famous dictum in McCulloch v. Maryland that we can never forget it is the Constitution we are expounding. As historians, we can never forget it's a debate we are analyzing or we are expounding as opposed to the supposition that some crystallized, primordial set of meaning was locked into the Constitution at the very moment of adoption. Which is, I think, the fiction upon which the theory of originalism rests.”
You may find that at this link http://www.earlyamerica.com/review/1998/rakove.html . Rakove also wrote a book on the subject, Original Meanings: Politics and Ideas in the Making of the Constitution. Here’s a link to the Amazon page. http://www.amazon.com/Original-Meanings-Politics-Making-Constitution/dp/0679781218/ref=sr_1_1?ie=UTF8&qid=1356730937&sr=8-1&keywords=jack+rakove

If you want to make a case here for a Founder that started out with the idea of Strict Construction it would be Thomas Jefferson and his allies. However, Jefferson himself ended that idea with the Louisiana Purchase. At first he thought he had to amend the Constitution in order to make the purchase and took steps to do so, but he then changed him mind with the assistance of others who persuaded him that territorial expansion was an inherent (implied) power of the Constitution. So right there we can see that the concept of a dead constitution wasn’t going to last if it was even meant to exist in the first place because of the amendment process. Madison offered to rewrite it in the 1st Congress, but that Congress decided not to do so.

The opposing argument to the Living Constitution is the originalism argument which is nothing more than a blank check for its supporters to interpret the Constitution as they want to do so to reflect their political agenda. I find it ironic that many historians reject the conclusions of certain Supreme Court justices who supposedly find the intent of the Founders to be exactly what their political leanings are. Yet, here those justices are saying they know history better than the historians. Maybe there is something to what Jefferson said about not binding the people of the future to the deeds by the people of the past. He wanted to rewrite the Constitution every 19 years, but the Framers were aghast at the idea, in particular Madison.

Jimmy Dick said...

Tom,
I think you interpret Jefferson to fit your ideology. The guy was full of contradictions which make using him as your model for Founder perfection very difficult. He will drive you crazy with what he wrote, said, and did because they often are so at odds with each other. Jefferson opposed the US court system because it wasn’t beholden to him or his ideas. Right there is the key to Jefferson…ideas. Everything he did was about his ideas. In short he thought the ends justified the means which is why he did things that seem to be at odds with what he wrote. Take the Kentucky Resolution which you brought up earlier. Jefferson used that as a political tool. There are some good arguments as to what he actually meant and what he intended with that Resolution based on his actions later as President.
Finally since this is getting long here is one thing you missed in your commentary you provided a link to. When Jefferson took office he gave one of the finest inaugural addresses in US history. The concepts in that address became the standard for the interpretation of the American Revolution. He brought out the concept that the Revolution was about ideas which was radical for the time even then.
“These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.”

Tom Van Dyke said...

Tom,
I think you interpret Jefferson to fit your ideology.


No. And I don't appreciate that charge, Jimmy.

Fact is, I don't really like or respect Thomas Jefferson very much beyond a few flights of soaring rhetoric. My argument here is that even Jefferson doesn't support a "living" Constitution. No Founder did, or else they wouldn't have bothered to write the damn thing in the first place.

I have appreciated our discussion, Jimmy, but you haven't been able to show your work, and the reason is the Founders don't back your point of view. The facts are not on your side.

"Time and changes in the condition and constitution of society may require occasional and corresponding modifications. One single object, if your provision attains it, will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.

And with no body of men is this restraint more wanting than with the judges of what is commonly called our General Government, but what I call our foreign department. They are practising on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a constitution, formed by a single authority, and subject to a single superintendence and control; but that it is a compact of many independent powers, every single one of which claims an equal right to understand it, and to require its observance.

...

This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt."---TJeff, Letter to Livingston, 1825.
BF mine.

Jimmy Dick said...

Well Tom, I have to disagree with you. On the day of the signing of the Constitution Benjamin Franklin remarked that it was not a perfect government that they had created. With that thought in mind it is obvious that Franklin thought they weren't finished with the process, but the Constitution was the best that this body of men could do.

I will never be able to prove what you want because you will reject everything anyone says that you don't want to believe because it doesn't fit in with your ideology. You quote one letter by Jefferson, yet ignore his whole body of work which is really saddening. But then that's typical of what you've said so far in this conversation and in others.
Here is a quote by Jefferson which I'm sure you will dislike since it advocates a living Constitution. "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." It is a letter from TJ to Samuel Kercheval, July 12, 1816.

Madison also recognized the Constitution had to be interpreted by the people of any era because the use of language changed over time. Reject the claims if you wish, but you ignore the real issue of Constitutional interpretation. It has to fit our needs of our era. It has to fit the needs of the upcoming eras as well. To do so it must be flexible and it is. Without the flexibility this country would not have survived.

Tom Van Dyke said...

I will never be able to prove what you want because you will reject everything anyone says that you don't want to believe because it doesn't fit in with your ideology. You quote one letter by Jefferson, yet ignore his whole body of work which is really saddening.

If you could offer proof, you would, if not for me for the gentle reader. Thanks for the exchange, except for that last bit. Peace.