Friday, January 31, 2003

Deleting Bellesiles From Reinhardt's Decision Doesn't Solve the Problem

As several bloggers have pointed out, Michael Bellesiles has been deleted from Judge Reinhardt's Silveira decision. But after reviewing the changes, Judge Reinhardt seems to have done himself in. What the decision said before was:
During the period that the Articles were in effect, both George Washington and Henry Knox, who was to become the nation’s first Secretary of War in the Washington Administration, urged the creation of a standing national military force, to no avail. H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 411-13 (2000). Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays’s Rebellion that because of the lack of a unified national military force, “[w]e are fast verging to anarchy and confusion!” Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931) (quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).
All that Reinhardt has done on this footnote is delete
(quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).
Reinhardt hasn't made any other changes, and as I pointed out a few weeks ago, the problem is that the claim "because of the lack of a unified national military force" is not strongly supported by the context of that quote. Before, at least, Reinhardt could at least say, "Well, I was relying on Michael Bellesiles, who made that claim." Now he has deleted Bellesiles, and is asserting that the letter from Washington to Madison makes this claim. As I wrote here,
Now, Washington certainly mentions the Shays's Rebellion in this letter--after discussing "anarchy and confusion!" But there isn't any discussion of "because of the lack of a unified national military force." One might at least as fairly assume that Washington was referring to the problems of finances and the previous inability of Congress to vote for a "paper emission." Washington was definitely a supporter of a standing army, having found militias to be a "week reed" upon which to rely. But this letter is quite a bit more ambiguous than either Bellesiles's representation of it, or Reinhardt's representation of Bellesiles.
Reinhardt can't even blame this on Bellesiles now. He needs to either remove this very questionable claim about why Washington said what he said, or admit that he is making a highly arguable assumption. Of course, this level of intellectual integrity would destroy the rest of Reinhardt's decision--which cites a decision that argues that only weapons of "civilized warfare" are constitutionally protected as proof that military style weapons are not constitutionally protected.