The Smallest Minority

The Smallest Minority
The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand "I don't just want gun rights... I want individual liberty, a culture of self-reliance....I want the whole bloody thing." KdT
Wahabism Delenda Est Hey, FEC! BITE ME! I'm a Member of the McCain-Feingold INSURRECTION! "Jeez, Kevin... calling you an asshole would be a huge understatement, wouldn't it?" -Jack Cluth, The People's Republic of Seabrook (Coming from you, Jack, it's an honor.) email: gunrightsAT comcastDOTnet INVITATION: If you have never shot a firearm, regardless of your position on the right to arms, and if you live near or visit the Tucson, AZ metropolitan area, I invite you to go shooting for a day. I will provide the arms, ammunition, targets, safety equipment, range fees and instruction. All you have to do is show up. 4 Takers To Date DO YOU LIVE SOMEWHERE ELSE and want to try shooting? Click HERE Proud Gun-blogging member of the Pajamahadeen since May, 2003! An Invitation to My Readers Debates: "The Commentary" A OLD discussion on gun control between me and an Irishman living in London Start here. UPDATED! Now with archive! Post #1 by Alex, a Guest A multi-post discussion hosted here at TSM My short exchange with Professor Saul Cornell of the Second Amendment Research Center Best Posts: The "Rights" Discussion: What is a "Right?" What is a "Right"? Revisited, Part I Part II Rights, Morality, Idealism & Pragmatism, Part I Part II Part III Part IV The United Federation of Planets Is the Government Responsible for Your Protection? Part I & Part II 1975 in Washington, D.C. vs. 2004 in Canton, Ohio Go Ahead, Rely on the Government for Your Protection The Other Side Liberal vs. Conservative: Both are Necessary The Blog that Ate Poughkeepsie Updated and restated as: Of Laws and Sausages Militias A Mistake a Free People Get to Make Only Once This is NOT What I Wanted to Read TRUST The Lying "News" Media, Pt. II Say WHAT? Bias? What Bias? Agenda? What Agenda? The Church of the MSM and the New Reformation Let's See if I Can "Germinate an Intelligent Thought" Here The ACLU Hasn't Changed its Tune They Never EVER Stop It is Not the Business of Government Five Reasons Why It ISN'T They Keep Making Better Fools Five Month Investigation, 10 Tracer Rounds, Two Felony Convictions That Sumbitch Ain't been BORN! On Guillotines and Gibbets England Slides Further Towards Bondage Pressing the "RESET" Button Freedom's Just Another Word for Nothin' Left To Lose A Terrible Resolve The Courts Will Not Save Us Trilogy: The Road to Hell is Paved with Good Intentions "Game Over, Man. Game Over." An Important Question And the denouement: Hudson Was Wrong The Dangerous Victims Trilogy: "(I)t's most important that all potential victims be as dangerous as they can" Violence and the Social Contract Governments, Criminals, and Dangerous Victims In the same vein: Those Without Swords Can Still Die Upon Them The True Believers Trilogy: True Believers March of the Lemmings Reasonable People Also in the same vein: Tough History Coming Technical Dissertations Why Ballistic Fingerprinting Doesn't (And Won't) Work Spin, Spin, Spin Speaking of Teddy Kennedy... This is the Kind of Thing That REALLY IRRITATES ME Questions from the Audience? BLOGROLL: PROTESTWARRIOR Some people who are taking the fight to the Left. And some GREAT T-shirts, too. DAILY READS I need a longer day! Day by Day InstaPundit Lileks' The Bleat Kim du Toit Mostly Cajun View from the Porch Of Arms and the Law TFS Magnum Ravenwood's Universe Irons in the Fire Say Uncle TRUE EXCELLENCE American Digest The Belmont Club The Volokh Conspiracy Michael Yon Varifrank Eject!Eject!Eject! Eternity Road Oleg Volk Personal Effects ON INDEFINITE HIATUS USS Clueless The Safety Valve Ipse Dixit The Lopsided Poopdeck Acidman (RIP) Skywritings Publicola D.C. Thorton Smoke on the Water OTHER GUN/RIGHTS BLOGS Airborne Combat Engineer AlphaPatriot Alphecca American Dinosaur A Day in the Life of an Ambulance Driver The Anarchangel The Anti-Idiotarian Rottweiler Argghhh! The Bitch Girls Boots and Sabers The Breda Fallacy Call Me Ahab Carnaby Fudge Clayton Cramer Cogito Ergo Geek Countertop Chronicles Cowboy Blob Critical Mastiff Cryptic Subterranean FreedomSight From the Heartland Fun Turns to Tragedy!!! The Geek with a .45 Gunwatch Heartless Libertarian Hell in a Handbasket Individ Justin Buist's Blog The LawDog Files Lead and Gold Les Jones Mad Ogre The Michael Bane Blog Moral Flexibility Mr. Completely Murdoc Online The Munchkin Wrangler Ninth Stage No Looking Backwards No Quarters Oscar Poppa Outrageous Malfunction Pass the ammo Posse Incitatus Random Nuclear Strikes Reasonablenut Resistance is Futile! Sandcastles and Cubicles SlagleRock's Slaughterhouse Snowflakes in Hell Surly Curmudgeon Texican Tattler The Ten Ring South Park Pundit Triggerfinger The View From North Central Idaho Vox The War on Guns Weck Up To Thees! Wince and Nod Xavier Thoughts .45 Caliber Justice BLOGGERS I'VE MET Cowboy Blob Kim du Toit Mrs. du Toit Serenity Smoke on the Water The Anti-Idiotarian Rottweiler On the Patio Fodder of Ride Fast & Shoot Straight Rivrdog Say Uncle JimmyB, The Conservative UAW Guy KeeWee Mr. Completely Og the Neanderpundit USCitizen of Traction Control World Examiner Joe Huffman Chris & Mel John and Beth Donovan Sebastian of Snowflakes in Hell DirtCrashr of Anthroblogogy Rob of The Kitchen Maj. Chuck Ziegenfuss of From My Position... On the Way! Matthew of Triggerfinger Sarah of Carnaby Fudge KevinP who maintains this excellent Wikipedia entry on the Joyce Foundation Dave Hardy Clayton Cramer Primeval Papa FURRINERS Kiwi Pundit The Policeman's Blog Free Market Fairy Tales Samizdata Musing The Second Version OTHER GOOD READS Baby Troll Blog The Winds of Change Sense of Events The Everlasting Phelps Knowledge is Power QandO Blog Radio Blogger THE PSYCHE BRIGADE Dr. Sanity Dr. Helen One Cosmos ShrinkWrapped Neo-Neocon Sigmund, Carl, and Alfred OTHER AZ BLOGS Useful Fools Zonitics Jackalope Pursuivant Primeval Papa DEPT. OF OUR COLLAPSING SCHOOLS Joanne Jacobs EducatioNation Teacher, Teacher The Irascible Professor OTHERS KIND ENOUGH TO BLOGROLL ME Adding to the Noise America's North Shore Journal Anthroblogogy Atomic Nerds Baboon Pirates Bad Dogs and Such The Bastidge Blognomicon Charming, Just Charming Chublogga! Classical Values Common Sense and Wonder Combs Spouts Off Conservative Scalawag The Crazy Rants of Samantha Burns damnum absque injuria David Drake Digital Retrograde The Dougout The Emigre with a Digital Cluebat Empire of Dirt Ether Mind The Fabulous Mint 400 The Freeholder Heinleinblog Impearls Interested-Participant Isaac Schrödinger Josh's Weblog Keith Devens Kill Righty Libertopia The Liberty Zone The Liberty Papers Living in the Surreal World Mike's Eyes Miss O'Hara The Mind of Mog The Ministry of Minor Perfidy MonkeyWatch Adam Lawson NashvilleFiles Near the Salty City PervasiveLight Pierre Legrand's Pink Flamingo Bar Practical Penumbra The Passing Parade Right As Usual Rough Diamond Rules for Rulers Sharp as a Marble She Who Will Be Obeyed! The Speculist Sperari Striderweb A Trainwreck in Maxwell Upbeat Cynicism (Ian Hamet) The Warren Warthog's Rants Wasted Electrons Wheels within Wheels Wicked Thoughts	Thursday, February 03, 2005 Professor Saul Cornell Responds, and So Do I Here is his reply to my earlier piece, complete and unedited: Thanks for the e-mail. Here is my quick response to the points raised on the blog. Scholarship and the Courts for the entire 20th century adopted the collective rights theory. The Senate Committee reflects the political clout of the gun rights movement, not the state of the law or scholarship in 1982. Quoting dicta from the most infamous case in American history is hardly a strong case for an individual rights consensus in the 19th century. The fact that Tribe changed his mind before the most recent scholarship debunking the standard model appeared does not tell us much. Tribe is hardly an expert on early American history. The dissent in the 9th Circuit was not the majority view, and Kozinski is a bit odd to say the least. I have never denied the existence of an individual rights tradition, but I think the evidence strongly suggests that it was weak at the Founding, got stronger over the 19th century, but never supplanted the two alternative models-- the collective rights view, and what I call the civic rights view. Of course, since I am not an originalist none of this really matters. Moreover, with 240 million guns in America and without an individual right written into the 2nd Amendment why all the fuss. I believe the issue is very interesting, but at the end of the day it really hardly matters in terms of the politics and public policy debate. Guns are part of the fabric of American culture and are not going away so the question is can we take a few common sense steps to reduce gun violence or not. The slippery slope arguments have it backwards. What we have is an upward struggle to achieve modest regulations. Hope this helps Saul Cornell Director, Second Amendment Research Center, John Glenn Institute Associate Professor Of History Fellow Law, Policy, and Social Science Moritz College of Law Oh, indeed, it helps. I'm glad that you admit up front that you are not an originalist. It is obvious from your writing, but stating it explicitly is certainly helpful. For those unfamiliar with the term, an "originalist" is one who believes that the Constitution is not a "living document," and that interpretation of it should be based on the original understanding of the text as it was proposed and ratified. Justice Antonin Scalia is an originalist, for instance. Therefore if the Constitution is found to be outdated in any of its parts, it should be altered by amendment, rather than by mere legislation or judicial interpretation. In other words, even if the legislature should pass a law that appears to be a good idea, but is in violation of the Constitution as originally understood by those who ratified it, it should be the duty of the Judiciary to strike such law down as unconstitutional until such time as the Constitution has been amended to correct the error. Further, the power of the Judiciary is restricted to striking down unconstitutional law, and not creating law. That power is left to the legislative and executive branches. There's good reason for this. The Constitution is a mechanism designed to restrict and constrain the power of the federal government. The tripartite system is engineered to ensure that expansion of power of any one branch can be checked by the power of either other branch, and that even two branches together can be restrained by the remaining one. The Founders knew the dangers of democratic forms of government, and did their best to build a corruption-resistant, but robust and functional structure. However, we humans are persistent creatures, and given time, even the best structures can be destroyed. And we've had lots of time. You are not quite correct in your statement that "Scholarship and the Courts for the entire 20th century adopted the collective rights theory" as the Committee of the Judiciary report indicates, since it was published in 1982. Sanford Levinson's Yale Law paper The Embarrassing Second Amendment was published in 1989. The gun control scholarship was crumbling towards the end of the century. The U.S. v Emerson decision was published on October 16, 2001. You pooh-pooh the Senate report as "reflect(ing) the clout of the gun rights movement," but I would suggest that the nearly 120 years of gun control prior to that report reflected the clout of a combination of racism, growing statism, and the exploitation of what Stalin termed "useful idiots." The gun rights movement was growing during that period precisely because of the infringements resulting from this triumvirate. It is good that you apparently acknowledge, however, that prior to the 20^th century, neither scholarship nor the courts held any such belief strongly, because it is there that your rejection of originalism becomes a prerequisite for accomplishing your current goals without actually having to attempt the "slow and uncertain process of amending the Constitution." I've never understoond the rejection of originalism in the pursuit of a single-minded goal. Alan Dershowitz, Harvard Law School's Felix Frankfurter Professor of Law is quoted as saying: Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard, don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like." Professor Levinson, in The Embarrassing Second Amendment wrote: (I)f one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present-day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights? As Ronald Dworkin has argued, what it means to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights were always (or even most of the time) clearly costless to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. The very fact that there are often significant costs--criminals going free, oppressed groups having to hear viciously racist speech and so on--helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments. Most often, one finds them embracing versions of textual, historical, or doctrinal argument that dismiss as almost crass and vulgar any insistence that times might have changed and made too "expensive" the continued adherence to a given view. "Cost-benefit" analysis, rightly or wrongly, has come to be viewed as a "conservative" weapon to attack liberal rights. Yet one finds that the tables are strikingly turned when the Second Amendment comes into play. Here it is "conservatives" who argue in effect that social costs are irrelevant and "liberals" who argue for a notion of the "living Constitution" and "changed circumstances" that would have the practical consequence of removing any real bite from the Second Amendment. As Fred Donaldson of Austin, Texas wrote, commenting on those who defended the Supreme Court's decision upholding flag-burning as compelled by a proper (and decidedly non-prudential) understanding of the First Amendment, "[I]t seems inconsistent for [defenders of the decision] to scream so loudly" at the prospect of limiting the protection given expression "while you smile complacently at the Second torn and bleeding. If the Second Amendment is not worth the paper it is written on, what price the First?" The fact that Mr. Donaldson is an ordinary citizen rather than an eminent law professor does not make his question any less pointed or its answer less difficult. Being an "ordinary citizen" myself, I find myself in strong agreement with him. Another "ordinary citizen," Bill Whittle, wrote in his essay Freedom: We as a nation suffer an appalling number of handgun-related deaths each year --- perhaps 11,000 of them. The number is not important; each is a personal tragedy and those lives can never be replaced. If we attempt to reduce this horrible number by banning handguns, we are taking away the property of a person who has broken no laws by a government whose legitimacy is determined by a document that specifically allows that property, namely guns. Destroy that trust by punishing the innocent, by pulling a plank from the Bill of Rights, and the contract between the government and the people falls apart. Once the Second Amendment goes, the First will soon follow, because if some unelected elite determines that the people can't be trusted with dangerous guns then it's just a matter of time until they decide they can't be trusted with dangerous ideas, either. Dangerous ideas have killed many millions more people than dangerous handguns - listen to the voices from the Gulag, the death camps, and all the blood-soaked killing fields through history. You may object that you do not wish to ban handguns, that you only pursue "a few common sense steps." Perhaps so. But you also asked, "why all the fuss"? And you said, "I believe the issue is very interesting, but at the end of the day it really hardly matters in terms of the politics and public policy debate." This is what all the fuss is about, at least from my perspective. Alan Dershowitz sees it. Sanford Levinson sees it. Fred Donaldson, Bill Whittle and I see it. That's what all the fuss is about, and it matters a great deal. You, an historian, have taken it upon yourself to distort history - something that you yourself claim is unacceptable. You claim that the Justice department's recognition of the "standard model" of the Second Amendment is somehow "well beyond" a "living document" re-interpretation. I'm sorry, Professor, but if you actually believe that you're delusional, and if you know better you're a bald-faced liar. I honestly cannot tell which. You object that Laurence Tribe is "hardly an expert on American history," yet he doesn't have to be - you gloss right over the fact that he's an acknowledged expert on Constitutional law. You protest that he "changed his mind before the most recent scholarship debunking the standard model appeared." The simple answer to that? ASK HIM. And what scholarship would that be? Michael Bellisiles' thoroughly discredited book Arming America? Or your upcoming book Armed in the Holy Cause of Liberty: Guns and the American Constitution? You object to my citation of Dred Scott because it's "the most infamous case in American history" - but it was infamous because it denied fundamental enumerated* civil rights to blacks, not because Chief Justice Taney didn't know and accurately list* what those rights WERE. You protest that Justice Kozinski is "a bit odd to say the least." Really? Why? Because he's an originalist sitting on the 9^th Circuit? Because when the Supreme Court overturns a 9^th Circuit decision, Kozinski is almost always one of the dissenters to the original decision? Because Kozinski writes clearly and eloquently enough that "ordinary people" can understand him? You object to my citing Justice Kozinski because his opinions are in the minority, but you don't note that in the case I cite he wasn't alone. Justices Pregerson, Gould, Kleinfeld, O'Scannlain and Nelson also dissented. Are they also "a bit odd"? Justice Kleinfeld's slightly drier dissent was joined by Kozinski, O'Scannlain, and Nelson. He said: I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms. The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel's theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms." It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel's protection of what it calls the "people's right to bear arms” protects that “right” in the same fictional sense as the “people's” rights are protected in a “people's democratic republic.” Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires. The panel decision purports to undertake historical analysis. Historical context has its uses in understanding the context and purposes of any law, constitutional or legislative, but like legislative history, the use of history is subject to abuse. Where the historical scholarship is partial and tendentious, relying on it becomes like relying on legislative history: “entering a crowded cocktail party and looking over the heads of the guests for one's friends." Much of the panel decision purports to be an attempt to figure out what the word “militia” means in the Second Amendment. But the panel’s failure to cite the contemporaneous implementing statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the “militia” consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect. Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller, held that the term “militia” in the Second Amendment meant, and means, "all males physically capable of acting in concert for the common defense.” We are an inferior court, bound by this holding of the Supreme Court. The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims “keep and bear” means the same thing as "bear," which itself means only to carry arms as part of a military unit." About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of "the people" to be secure against unreasonable searches and seizures, or the right of "the people" to freedom of assembly, but times and personnel change, so that this right and all the other rights of "the people" are jeopardized by planting this weed in our Constitutional garden. This decision was published on May 6, 2003. Has the scholarship changed that much in less than two years? Has there been another law review article that claims that "keep and bear arms" means only "to carry arms in military service" since then? Justice Kleinfeld also, like Professors Dershowitz and Levinson, Mr. Donaldson, Mr. Whittle and myself, recognizes that what the 9^th Circuit has done is strip one of the ten amendments from the Bill of Rights by judicial fiat. By "judicial activism." I happen to live in the 9^th Circuit. I don't like being told that I have no individual right to arms when I can read the history, both legal and legislative, and know better. You protest that the "slippery slope" arguers "have it backwards," that with 280 million guns in America they aren't going to go away. I'm sorry, but we've seen what eighty years of progressive "common sense gun control" has done to England. That is the "slippery slope," and they seem to be gaining significant speed down it. We've read the literature of the gun control groups. Their entire existence is based on the belief that "the number of guns" in America is responsible for the level of carnage. How else do they expect to reduce that carnage without reducing "the number of guns"? And who can they take those guns from? Only the law-abiding. And how will they accomplish this? The same way it was done in England - by passing incrementally more restrictive, obnoxious, expensive, and irritating laws on acquisition, possession, use, and storage. Then, because none of these laws will result in traceable improvements in gun crime levels, (I refer you to the recent National Academy of Science report on the efficacy of gun control laws in actually, you know, controlling gun violence. Here's a hint - no studies done to date show that any "gun control" laws have been effective in reducing gun violence.) we will be told that "we need to plug the loopholes" and stronger laws are needed. Laws like licensing and registration, and inspection for "safe storage" compliance. Laws, I'll remind you, that criminals will simply ignore or be immune to. You state that all you want is to "take a few common sense steps to reduce gun violence." Unfortunately, I cannot trust you. You have demonstrated either a willingness to lie, or an ability to delude yourself into believing what is obviously not true. Further, you've demonstrated a willing activism to convince others of your delusion or your lies in the furtherance of your ends. You may pat yourself on the back for your actions because "its all in a good cause," but what you are participating in is the cultivation of that weed in our Constitutional garden, in pulling that plank from the Bill of Rights, with no concern for the result of that. It's alright by you, because you're not an originalist, so "none of this really matters." But it matters to me and people like me, and that is why there is a "big fuss." I hope this helps. UPDATE, 2/7: As of this writing, Professor Cornell has not replied to this piece. Nor do I expect him to, really. Labels: Education, gun control, Saul Cornell \| posted by Kevin at 6:22 PM PermaLink HOME