Shill

In his email to me, Professor Saul Cornell asked,

I wonder how you feel about Nelson Lund's NRA chair at GMU law school. Would you say he is shilling for NRA?

To which I answered: "Yes."

Dictionary.com defines "shill":

(noun.)

One who poses as a satisfied customer or an enthusiastic gambler to dupe bystanders into participating in a swindle.

(verb)

1. To act as a shill for (a deceitful enterprise).

2. To lure (a person) into a swindle.

I must apologize to Mr. Lund.

I truly think that both Mr. Lund and Professor Cornell believe that which they profess. They are not attempting deceit as they see it. Each is professing honestly held beliefs. (At least, I hope so.)

The difference, however, is in how closely those beliefs relate to reality, and how much each person is willing to ignore or even manipulate fact in order to promote their own particular world-view.

It was this willingness to avoid or manipulate that prompted Sanford Levinson to write The Embarrassing Second Amendment. He wanted to put a spotlight on the fact that the meaning of the Second Amendment was avoided in modern law simply because it made so many people uncomfortable. He wrote:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.

Note that he included himself in that group supporting "prohibitory regulation."

I've said before that I really started studying the topic of the right to arms - and, by extension, the Constitution and the Bill of Rights - starting about 1995. I have stated that I had a certain understanding of that right, and in fact all of the rights protected by that document before I began that study. To some extent, my education has lead me to some conclusions I don't particularly care for. For instance, I think state-permitted concealed-carry is historically justifiable (but prohibition of unlicensed open carry is not.) The one thing I have noted, however, is that when people actually take the time to study the topic, the conversion of opinion goes only one way: If they believe the right to arms is an individual one, their opinion is not changed. If they believe there is no individual right to arms, either they are converted to the opposite belief, however grudgingly, or their personal prejudices prevent them from doing so. But no one is converted from believing that the Second Amendment protects an individual right to an opposite conclusion. The evidence is too overwhelming.

The best example of this I know of is Professor Laurence Tribe. Professor Tribe is a professor of Law at Harvard, and is author of the textbook American Constitutional Law, which is used in (I believe) the majority of ConLaw classes in the U.S. Professor Tribe is a self-described member of the Left, and was a member of Al Gore's legal team during the 2000 election debacle. I have absolutely no doubt about Professor Tribe's position concerning gun control - he's in favor of it. In the first two editions of his textbook, printed in 1978 and 1988 respectively, he relegated discussion of the Second Amendment to footnotes. But in his third edition, published in 2000, he dedicated nine pages to the topic, concluding:

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.

A November 1999 Wall Street Journal piece, Liberals Have Second Thoughts On the Second Amendment discusses the topic as well. (The galley prints of Prof. Tribe's book were out by then - and were already stirring controversy.)

Mr. Tribe believes the right to bear arms is limited, subject to "reasonable regulation in the interest of public safety," as he and Yale Law Professor Akhil Reed Amar wrote in the New York Times last month. But Mr. Tribe has written that people on both sides of the policy divide face an "inescapable tension. . . between the reading of the Second Amendment that would advance the policies they favor and the reading of the Second Amendment to which intellectual honesty, and their own theories of Constitutional interpretation, would drive them."

Journalist Daniel Lazare, a liberal gun-control advocate, acknowledges the tension, writing in Harper's: "The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right." Mr. Lazare argues for amending the Constitution to repeal the Second Amendment.

And there is the point I want to make with this piece. Daniel Lazare wrote to the WSJ in response to the piece:

Ms. Levey is right that I agree with constitutional scholars like Sanford Levinson and Laurence Tribe that the Second Amendment guarantees an individual right to keep and bear arms. But she is wrong elsewhere.

First of all, she describes me as a liberal. In fact, I'm a socialist.

Second, she calls me a "gun-control advocate." In fact, nowhere in my Harper's article, "Your Constitution is Killing You," did I specifically argue in favor of gun control; all I said, rather, is that if that is what the democratic majority wants, that is what the democratic majority should get, Second Amendment or no Second Amendment.

Third, she says that I argue in favor of "amending the Constitution to repeal the Second Amendment." Not so: I devoted much of it to pointing out that the amending process is quite useless in this instance. Under the terms set forth in Article V, as few as 13 states representing less than 5% of the population can block any change desired by the emaining 95%. Given that no one would have any trouble drawing up a list of 13 rural states in the South or West, states for whom repealing the Second Amendment would be akin to repealing the four Gospels, the amendment is, under anything like present conditions, invulnerable. Even though polls indicate that a majority of Americans do not want an individual right to bear arms, a Constitution made in the name of the people says that is what the people must have whether they like it or not.

This is anything but democratic. Rather than amending the Constitution, my position is that we should toss this antiquated document and create a new plan of government from scratch, this time one based on strict majority rule.

Daniel Lazare
New York

There is an honest man. A fucking socialist, but an honest man.

Which, in my humble opinion, Professor Saul Cornell is not. (Honest, not socialist - though he might be that as well.) He is at best a self-deluded man. He twists logic, consciously or unconsciously, to justify a position that cannot be reasonably held by someone willing to look reality squarely in the face. As I said to him previously:

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.

And I can't.

But it doesn't really matter. He's working willingly for the Joyce Foundation - a group dedicated to, among other things, disarming Americans. David Hardy has an interesting post from April of last year concerning the Professor, his association with the Joyce Foundation, and a symposium put on by Fordham University. Hardy notes:

You must, of course, apply to Joyce for a grant. And its standards make it clear that the project -- or in this case law review -- is expected to advance the enactment of gun legislation (buzzword = "policy").

From its webpage on its grant priorities:

The Gun Violence Program supports efforts to bring the firearms industry under comprehensive consumer product health and safety oversight as the most promising long-term strategy for reducing deaths and injuries from handguns and other firearms.
Program priorities are:
• Supporting state-based policy initiatives in Illinois and Wisconsin that can achieve meaningful reforms and provide a model for gun policy nationwide ....
• Supporting focused research to inform state policy efforts.

From its grant FAQ,

Do you fund educational programs in violence prevention? We generally do not fund such programs.
....
Do you fund research? We fund research that is likely to have a strong impact on public policy.
.....
Please tell me more about your focus on public policy. We focus our grantmaking on initiatives that promise to have an influence on public policies. That includes advancing the public debate about important policy issues, most notably the need for federal consumer product health and safety standards for the firearm industry. We believe such policy initiatives can lead to broad, systemic changes that affect the most people over the long run.

In other words: don't come to us with a law review that will explore the Second Amendment. Come to us with an idea for one that will help enact gun laws. That is what we fund.

Now, I'm sure the professor would point out that Nelson Lund is under similar restrictions regarding NRA funding - they don't support anti-gun research, either.

But the NRA isn't trying to swindle Americans out of their Constitutionally guaranteed rights.

And that IS a difference.

UPDATE, 5/15: I sent an email to Prof. Lund with a link to this piece. He responds:

Mr. Baker--

Thanks for your message and consideration. I took a quick look at the web page to which you provided a link, and feel that I should point out that it is incorrect to say that "Nelson Lund is under similar restrictions regarding NRA funding - they don't support anti-gun research, either." My academic work is under no such restrictions. The dean of my law school has designated me the Patrick Henry Professor of Constitutional Law and the Second Amendment. I do not answer to the donor, any more than hundreds or thousands of other holders of named professorships in this country answer to those who donated funds to establish the chairs. Nor has my dean ever so much as suggested that I am under any obligation to conform my views or the results of my research to the preferences, presumed or expressed, of the donor that provided funds for the professorship to which I was named. In short, I am perfectly free to publish "anti-gun research" if that is where the search for truth leads me, and I do not believe I would suffer any financial penalty of any sort if I did so.

If you could find a way to alert your readers to these facts, I would be grateful.

Nelson Lund

Consider it done.