The historical facts related to the right to bear arms

[Volokh, Eugene]

        I'm sorry to trespass further on Prof. Cornell's patience, but let
me touch briefly on what I think are some weaknesses in his argument.

        Prof. Cornell writes "Eugene refers to the Test Act as if it were
simply an emergency measure passed during time of war.  In fact the act was
not repealed till after the Constitution was ratified!"

        Here's the situation:  During a domestic war, the government
deprives those who refuse to take a loyalty oath of the right to bear arms,
plus other rights, such as the right to transfer real estate.  Then, the law
remains on the books for several years after the war is over -- by the way,
I wonder whether Prof. Cornell can enlighten us as to how often the law was
in fact enforced during the postwar period (his Con Comm article doesn't
mention this point) -- and is finally repealed.

        I would think that an observer, whether or not a "trained
historian", might well be justified in seeing the law as in fact "an
emergency measure passed during time of war," which was then repealed a few
years after the war was finished.  And this observer might, I think,
conclude -- by analogy to the history of various other constraints on
constitutional rights during wartime -- that such wartime measures show not
that the right is somehow not individual, but rather that even individual
rights suffer in some measure during a war (especially vis-a-vis
restrictions on actions by those seen as sympathetic to the enemy).  Just an
"ideological" conclusion, or perhaps also a "historical" one, given our
historical experience with wars and rights?

        Prof. Cornell faults Randy's and my citation to Tucker.  But of
course we cite not just Tucker, but Blackstone (1765), Tucker (1803), Story
(1833 and 1840), and Cooley (late 1800s), all of whom describe the right as
a deterrent to government tyranny.  We also cite Madison (1789), who
likewise describes the mass ownership of arms as a deterrent to government
tyranny.

        Now of course we agree that Blackstone, Tucker, Story, and Cooley
weren't writing at precisely the time the 2nd Am was being ratified.  But it
seems to me a fair inference -- at least a good starting place -- that when
a right is seen as one thing by the most influential commentator of the
pre-Revolutionary era, and is then seen as the same thing by the most
influential commentators of the post-Revolutionary era, that's evidence that
the right was probably seen as more or less the same thing during the
Revolutionary era.  And this is evidence that's strengthened by Madison's
focus on mass arms ownership as a deterrent to tyranny.  Just an
"ideological" conclusion, or perhaps one that has some "historical"
foundation?  (I have not yet seen, by the way, Prof. Cornell's explanation
for why we can dismiss not just Tucker but all the sources that Randy, I,
and others have cited.)

        Earlier, Prof. Cornell said that the right to bear arms "is a right
of the people working through the agency of their states to form a militia."
Actually, I agree with him in some measure that the militia was meant to be
organized, trained, and run by the states.  But what I don't see in his
account is an explanation for what sorts of government actions this right
would constrain -- the point of most such rights in bills of rights, state
and federal, being to constrain (with or without judicial review) government
action.  I claim that at the very least it would have been seen as barring
the state and federal governments from disarming the public and allowing
only employees of state (or federal) military and police forces to own guns.
I have not yet heard Prof. Cornell's views on the subject; but I hope he
agrees that, as a matter of analyzing legal documents such as Bills of
Rights, one has to acknowledge that the rights were meant as barring at
least this (or, if he reaches the contrary result, I hope he explains why
this is a plausible construction of the legal text).

        Finally, a word about why some people have lost patience with some
folks who might be fine historians but not trained lawyers.  I recall how
struck I was when I read Prof. Bellesiles' "Reply to Malcolm," Law & History
Rev., Fall 1997, at 343, 344-45:  "[W]ords do have meaning.  What sense does
it make to speak of an individual right that does not apply to whole classes
of people?  Yes, those who belonged to the favored group in England could
own guns, but precisely because they belonged to that group.  An individual
right applies to all citizens without regard to status.  The state cannot
deny a black person the right to speak and then honestly maintain that there
is an individual right to free speech.  A scholar cannot say that a nation
that proclaims that only those belonging to a privileged class can own guns
has established an individual right."

        I'm not sure whether the problem here is that the author has a
definition of "individual right" that's radically different from common
legal usage, or whatever else -- but surely while southern states denied
blacks the right to speak together with all the other rights, the right to
free speech was individual.  Surely while some American states limited their
guarantees of religious freedom to only Protestants or only Christians, the
rights were individual.  It might be quite wrong for states to deny this
individual right to some people -- but this hardly stops the right from
being individual.  It is simply false, as a matter of legal usage, to say
that "An individual right applies to all citizens without regard to status."
A pretty simple point, I think, about legal rights, no?

        Likewise, earlier on the same page, the author whom I quote also
says -- again, remember that this was during a discussion of the English
right to bear arms, "There just is not a written British constitution.  How
could a written constitution be based on an unwritten model?"  Well, first,
it's not that hard to base a written constitution on an unwritten model,
just as it wasn't hard to base written codifications on the unwritten common
law.  But more importantly, recall that the right to have arms (as well as
the right to petition, the freedom of speech and debate in Parliament, and
the right to be free from excessive bail, excessive fines, and cruel and
unusual punishment) came from the *written* English Bill of Rights, surely a
part of the "British constitution" as the term was then used.  Again, a
pretty simple point about legal documents, it seems to me.

        So I think that praising historians and casting aspersions on
lawyers isn't going to help bring enlightenment on this issue -- only
careful attention to the particular factual evidence (such as the statements
of Blackstone, Tucker, Story, Cooley, and Madison, the existence of the
state constitutional bills of rights, and the various other points that have
been made on this thread) can do this.

        Eugene



> -----Original Message-----
> From: Saul Cornell [SMTP:cornell.14 at OSU.EDU]
> Sent: Saturday, January 13, 2001 6:41 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Law Office History- Setting a higher bar to pass the bar
>
> There is a good reason that historians have lost patience with folks like
> Randy and Eugene who are great lawyers but not trained historians.  Even
> Robert Shalhope the historian most supportive of the individual rights
> view of  the Second Amendment has excoriated the Standard Model for its
> tortured view of history.  Eugene refers to the Test Act as if it were
> simply an emergency measure passed during time of  war. In fact the act
> was not repealed till after the Constitution was ratified!   Eugene treats
> 19th century commentators and state constitutions as though they inhabited
> the same world as their 18th century forbears and then claims  that when
> they changed the language in their constitutions regarding the right to
> bear arms that the changes were actually superfluous because no change was
> really needed. Such an argument is absurd and the burden of proof would
> seem to be on Eugene to show that change meant no change.  I have great
> respect for Randy and Eugene as constitutional lawyers but their arguments
> are clearly ideological and not historical. Both men quote Tucker's
> Blackstone but don't seem to realize that Tucker's ideas evolved in
> response to the crises of the 1790s. They ask for proof of  such a claim--
> yet I doubt either have read Tucker' unpublished writings, examined
> Tucker's correspondence, or even published on Tucker's thought!  Yet, they
> make pronouncements about Tucker as though each were a Tucker scholar
> immersed in his corpus of writings.  Neither Eugene or Randy has taken the
> time to get up to speed on the history of the period which requires
> reading far more widely in both published sources and unpublished sources.
> What we have had in this debate is a perfect example of what legal scholar
> Martin Flaherty's  has described as history "lite."  Rather than act with
> some humility (I would not presume to offer an expert opinion on matters
> of law) we have authoritative pronouncements about issues on which
> individuals are not experts!  Historians would tone down their attacks if
> lawyers would ratchet down their claims of expertise. This raises the
> issue of malpractice that Mark brought to the table.  Claims have been
> made which serve a clear political purpose but which could never stand
> scrutiny had these claims  been subjected to blind peer review in a
> reputable history journal.  While blind peer review is not perfect, it is
> better than nothing.   The legal profession enjoys tremendous power in our
> society, yet it alone among professions avoids blind peer review.  Its
> modes of publishing and policing itself border on criminal: no blind peer
> review, student edited publications.  With history becoming even more
> important to constitutional discourse the bar is simply being set higher
> and legal scholars will have to adapt or the charges of law office history
> will continue-- Such charges seem to be the only means available to call
> the legal profession to task and force it to confront a problem that
> historians and political scientists have been complaining about for years.
>
> Saul Cornell
> Associate Professor Of History
> The Ohio State University
> 230 West 17th Ave
> Columbus, OH 43210
>
> Office Phone: (614) 292-7858
> Fax: (614) 292-2282
> URL: <http://people.history.ohio-state.edu/cornell.14/>
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