Monday, December 22, 2008

Important New Law Review Article Out

Important New Law Review Article Out

Professor Saul Cornell, who fancies himself a serious historian because he is faculty at Ohio State University, wrote a law review article a few years back that claimed that St. George Tucker, one of the early and very important commentators on the Constitution, argued that the Second Amendment did not protect an individual right at all, based on Tucker's lecture notes. Both the majority and minority opinions in D.C. v. Heller (2008) assumed that Cornell knew what he was talking about and cited his claim.

My friend David Hardy
now has a new article out in Northwestern University Law Review that quotes in full the lecture notes that Cornell claims take this non-individual rights view of the Second Amendment--and shock of shocks! It turns out that Cornell's quotes are from Tucker's discussion of the militia clauses in Art. I, sec. 8. Tucker's remarks concerning the Second Amendment are essentially identical to his individual rights discussion in his 1803 gloss on Blackstone's Commentaries on the Laws of England.

This is not much of a surprise. Cornell defended Bellesiles' fraudulent work, and as several reviewers of Cornell's most recent book have pointed out, Cornell's work is riddled with gross factual errors--and like Bellesiles, those errors are remarkably one-sided:

When discussing regulation in the Jacksonian era, Cornell argues that several states expanded their use of the police power to prohibit "the sale or possession of certain weapons," and suggests that these weapons included both guns and knives. He specifically claims that Georgia and Tennessee passed "wide-ranging laws prohibiting the sale of pistols, dirks, and sword canes" (p. 142). There are two problems with Cornell's presentation of this material. The first is that Tennessee's statute applied only to Bowie knives, which clearly fell outside the scope of the right to keep and bear arms. The second problem is that Georgia's statute, which did apply to small pistols, was struck down as an unconstitutional infringement of the right to keep and bear arms in the 1846 case _Nunn v. Georgia_. Because Cornell never cites the case, it is difficult for a lay reader to discern the lack of balance in his presentation of the evidence. Cornell's assertions aside, there is little evidence that any colony or state exercised a police power to disarm citizens prior to the Civil War.

Cornell also asserts that pistols clearly fell outside of the constitutional protection afforded by the Second Amendment. He rests this assertion on the 1840 Tennessee Supreme Court Case _Aymette v. State_ upholding the aforementioned statute banning Bowie knives. Cornell declares that "in the view of the _Aymette_ court, the legislature enjoyed the widest possible latitude to regulate pistols" including the right to ban their possession (p. 146). But no such suggestion appears in the court's opinion. The court in _Aymette_ declared that "the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their _common defence_, so the _arms_, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.... The citizens have the unqualified right to _keep_ the weapon, it being of the character before described, as being intended by this provision."[3] The court found that Bowie knives were not of a military character, but made no mention or suggestion as to the status of pistols. Postbellum legal commentaries and judicial decisions applied _Aymette's logic in support of the argument that some small pocket pistols lacked military utility and thus fell outside the Second Amendment's protection, but Cornell has read this postbellum doctrinal development into an earlier text.

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