Dept. of They Never Ever Stop:

Ravenwood commented on, well, actually ripped on this op-ed column on the PittsburgLive.com site by "associate professor of history and director of the Second Amendment Research Center at the John Glenn Institute at Ohio State University" Mr. Saul Cornell. Ravenwood reveals that the "Second Amendment Research Center" is funded by the Joyce Foundation, a group dedicated to "meaningful reforms" and providing "a model for gun policy nationwide." Denise of The Ten Ring also waxed eloquent on the topic.

Now it's my turn.

Taking a bite out of the 2nd

By Saul Cornell
Sunday, January 30, 2005

The Department of Justice decided to revise the Second Amendment.

Really? I thought they had decided to make a plain statement of meaning, not a revision. I haven't noticed any change in the wording as it is archived. As I see it, the Dept. of Justice has merely done a scholarly analysis of the meaning of the Second Amendment and concluded what the 1982 Report of the Subcommittee on the Constitution of the Committee of the Judiciary of the United States Senate said:

The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such an "individual rights" interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself.

It would seem the Dept. of Justice's report is hardly a revision. But that's how Prof. Cornell sees it:

It has produced a 100-page memo designed to give activist judges a historical pretext for striking down existing gun laws.

Now THIS is RICH! Given the fact that "activist judges" are responsible for the current state of judicial affairs concerning the Second Amendment!

Up until just prior to the Civil War, the Supreme Court held that the Second Amendment protected an individual right of citizens, a right outside of militia service, to "keep and carry arms wherever they went," as I detailed in The Blog that Ate Poughkeepsie. In fact, Chief Justice Taney stated in the majority decision of Scott v. Sanford:

(Citizenship) "would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State." (My emphasis)

That's a pretty fair listing of the "rights of the People" as protected by the Bill of Rights against infringement by government. These rights were so inviolate that the Court decided that blacks, free or not, could not be citizens because to grant them that status would thereby confer those rights - irrespective of membership in a "well regulated militia" - upon them. It was not until AFTER the Civil War that "activist judges" declared that the Second Amendment protected only against infringement of this right by Congress in U.S. v. Cruikshank, thereby violating the expressed intent of Congress and the People in the passage of the 13th and 14th Amendments because the Justices just couldn't BEAR to see black citizens exercise their legal right to keep and bear arms.

Let's make sure we understand each other here: "Activist judges" means judges who, as 9th Circuit Court Justice Alex Kozinski put it, "constitutionalize" their "personal preferences." That's what the Courts have been doing to the Second Amendment now for decades - all in the name of "public safety." The same argument the Brady Bunch, et al. use today.

Let's continue:

Rewriting the Bill of Rights has been pawned off as nothing more than a return to the original understanding of the amendment. Yet this revisionist interpretation has nothing to do with the original.

Reads the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The department's revised Second Amendment contends the right of individuals to keep and carry guns shall not be infringed.

The Department of Justice has erased the preamble, which states the purpose of the amendment, to create a "well regulated Militia." The revision goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times. In effect, Justice believes it can expunge language that it finds inconvenient and substitute language more ideologically suitable in its place.

We're supposed to take associate Prof. Cornell's word as an authority that this is what the Amendment really means. I find it hugely ironic that he is now claiming that what's being done is not only a "living document" revision, but "goes well beyond" such revision. Let me quote a perhaps more competent (and less biased) authority, Laurence Tribe, Tyler Professor of Constitutional Law at Harvard and author of the text American Constitutional Law from which this quote is taken:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm 'We the People' so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes -- not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons -- a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

Laurence Tribe is hardly a right-wing gun-nut. He was one of Al Gore's lawyers during Bush v. Gore in 2000, and is a decided lefty. Or let me quote more fully from Justice Kozinski in his dissent to the decision to deny an en banc rehearing of Silviera v. Lockyer, which seems to take a quite opposite position to Professor Cornell:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms.

Justice Kozinski here perfectly illustrates "judicial activism" as it relates to the Second Amendment. Or how about 9th Circuit Justice Jay Gould's dissent to the en banc rehearing of Nordyke v King?

An “individual rights" interpretation, as was recently adopted by the Fifth Circuit in United States v. Emerson, consistent with United States v. Miller, is most consistent with the text, structure, purposes,and history of the Second Amendment, as well as colonial experience and pre-adoption history. It also reflects what I consider to be the scholarly consensus that has recently developed on the question of how to best interpret the Second Amendment. We should recognize that individual citizens have a constitutional right to keep and bear arms, subject — in the same manner as all other core constitutional rights — to certain limits. Thereafter, the chips will fall where they may, and decisions in due course will clarify what is and is not constitutionally permissible regulation, and the further standards for addressing it.

These are justices sitting on the bench of the most liberal Appeals court in the nation, citing legal precedent and historical documentation that associate Professor of History Cornell claims don't exist:

Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution.

I beg your pardon? I refer you, once again, to the Report of the Subcommittee linked above, and how about this page from UCLA law professor Eugene Volokh? Or the 5th Circuit Court of Appeals decision in U.S. v. Emerson? There are REAMS of scholarship showing that the "bearing arms" language in the Second Amendment did not restrict "the right of the People to Keep and Bear Arms" to milita service only, else Laurence Tribe would not have reached the conclusion he did.

Remember, Prof. Cornell is writing an opinion piece for a newspaper. He doesn't have to be right, he just has to be convincing. The ill-informed who read this piece think "Hey, he's an authority, he must be right." That's why his side has to keep repeating the big lies.

To continue:

Substituting the ideas of the losers for the winners turns history into a science-fiction fantasy, in which one might as well argue that the patriots lost the American Revolution, or the South won the Civil War.

Except we're winning. The original meaning that existed after the American Revolution, the meaning that was stripped by the Courts after the Civil War, is being slowly restored.

For better or worse, the real Second Amendment links the right to bear arms with a well-regulated militia. If Americans want to change this language it will have to be by the slow and uncertain process of amending the Constitution.

And here he simply lies. The "real Second Amendment" has never been linked to militia service in the Supreme Court, and only in the lower courts by (apparently deliberate) misinterpretation of the 1939 U.S. v Miller decision. Again, quoting Justice Kozinski:

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon - a sawed-off shotgun - was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.

Yet that's what most of the Appeals Court decisions Professor Cornell bases his worldview on have done. But he depends on the overwhelming majority of the public not understanding any of the history, legal or otherwise, and simply accepting his appeal to authority. It is the gun control side that needs to pursue the "slow and uncertain process of amending the Constitution" but it never even tries that path. Instead they try to pass unconstitutional laws, and failing that they try to legislate from the bench. Now that even that course is failing, they once again are attempting to deceive an ignorant public in order to anger and panic them. This way they can pursue the legislative angle, or possibly influence those "activist judges" who are willing to constitutionalize their personal preferences.

Professor Cornell concludes:

Distorting the past for ideological reasons is unacceptable, in the cause of either gun rights or gun control.

On this I concur fully. But I recognize that it is Professor Cornell and his ilk that have been "distorting the past for ideological reasons" for decades, and now they realize they're losing, and they're getting desperate.

I said previously that I started this blog to give me a place to be an advocate for individual rights - a place to voice my views and to hopefully help educate a populace that too often hasn't been told what their rights are supposed to be under the system of government we're supposed to be living in. This is a perfect example. Professor Cornell's piece will reach a lot more people than my rebuttal will, but I will reach some, and so will Ravenwood, and so will The Ten Ring, and so will others. Individually and together we have a voice denied to us previously, and that voice is at least in part responsible for the fact that we are winning the war of ideas, at least on this particular battlefield. Not only that, but we're winning because people are able to read the historical record for themselves and draw their own conclusions, no longer restricted to the opinions of "authorities" like associate professor Saul Cornell.

(Edited to add: I sent the Professor a link to this piece. His email address is Cornell.14@osu.edu. If he responds, I'll publish it.)

UPDATE - 2/3: Professor Cornell has responded. I'll post the response and my reply as soon as I can. This piece will require some time, though, so be patient.

Further Update: The response is up here.