Constitutional Law

Historian reviews Saul Cornell book

Historian Robert Churchill has a detailed review of Saul Cornell's recent book on the right to arms (Cornell's approach basically is that of DC in Heller). The critical parts:

" If I am reading Cornell correctly, he is arguing that early Americans believed that the right to keep and bear arms was guaranteed only to enrolled militiamen, and that it applied only to a single weapon per militiaman. If I have misunderstood him, I hope he will use part of his response to clarify. But if I have understood him correctly, then I think he has mis-conceptualized the civic right at the heart of the Second Amendment.

Cornell makes several arguments supporting this conception of the civic right. First, he asserts that colonial and state governments exercised a police power to regulate the possession of guns. Here, I submit, he has exaggerated the reach of the police power. For example, Cornell notes that early American law empowered constables to "take away the arms" of those guilty of the common-law crime of affray (p. 30). But the disarmament in question was authorized only temporarily for the purpose of bringing the offenders before a justice of the peace.[2] 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."

Hat tip to Jon Roland....

Full post as published by Of Arms and the Law on August 04, 2008 (boomark / email).