Comments on: The Second Amendment & Gun Control: An Email Dialogue between Mark Tushnet & Saul Cornell

By: Nick

Nick — Tue, 07 Aug 2007 20:09:58 +0000

RE: CJColucci’s comment
As of today (August 2007), in the state of Virginia the militia is officially defined as “all able-bodied citizens of this Commonwealth and all other able-bodied persons resident in this Commonwealth”.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+44-1

By: CJColucci

CJColucci — Thu, 02 Nov 2006 22:12:12 +0000

I vaguely remember a third viewpoint on the subject, in a book by Uviller and someone else. That view is that there was an individual right to possess arms in order to permit an effective militia to exist (if the guns had to be stored in a state warehouse, rather than the potential militia-members’s home, the feds could confiscate them), but that it existed if, and only if, there actually was a militia. Since, as a matter of fact, there is no militia anymore, the (individual) right to possess weapons (in order to serve in the militia) has become academic. If we ever ginned up militias again (for various reasons, the National Guard isn’t a militia), the individual right would spring back into existence.

By: Of Arms and the Law

Of Arms and the Law — Tue, 08 Aug 2006 02:19:50 +0000

Debate on Saul Cornell’s “A Well Regulated Militia”

Oxford Press has posted a debate between Saul Cornell and Mark Tushnet, relating to Cornell’s new book. I’ve read (albeit quickly) “A Well Regulated Militia” and, much to my surprise, rather liked it. The research is good, the style is…

By: David Scott

David Scott — Sun, 30 Jul 2006 09:49:24 +0000

Mr. Graber on July 10 made an excellent point regarding preemption that to date has not received the attention it deserves. For Dr. Cornell’s position to be correct, that the Second Amendment precludes federal regulation of state militias, one must believe that the Supreme Court in its numerous opinions as early as 180 years ago somehow overlooked a constitutional prohibition to congressional preemption of state militia regulation. Indeed, the Court’s Militia Clause cases form the very foundation of the preemption doctrine. The Amendment affords no constitutional protection to the states. To opine otherwise one must also believe that the Second Amendment abbrogated the Militia Clause in Article I unbeknownst to all for 200 years. If not a state right, then whose?

By: Scott Wilkinson

Scott Wilkinson — Wed, 26 Jul 2006 00:11:14 +0000

I find Mr. Cornells’ book a slick bit of intellectual sophistry. He has simply dressed up the anti-individual rights view of the second amendment in a bunch of detail that obscures the issue. He hasn’t even addressed the simplest of those who argue for an even-handed look at the 2nd such as Sanford Levinson in his “The Embarrassing Second Amendment” much less the much more detailed assault on the collective rights view as demonstrated by Kates and others. The 5th Appellate courts decision in Emerson soundly proves the case of the individual rights view. He denigrates Kates’ analysis in the “the Second Amendment and the Ideology of Self-Protection” as anachronistic but offers no evidence that it is. No, like Rakove, Cornell is attempting to re-write history. As a book about the militia it might be very good, but its value to the modern day debate over the invidiual right to keep and bear arms is very little.

By: Bob Struble

Bob Struble — Thu, 20 Jul 2006 23:40:57 +0000

Heartening to see such a scholarly debate on this subject. For an academic view that is unabashedly normative, see,
http://www.tell-usa.org/arms/

By: Of Arms and the Law

Of Arms and the Law — Fri, 14 Jul 2006 16:19:48 +0000

Debate on Saul Cornell’s “A Well Regulated Militia”

By: Of Arms and the Law

Of Arms and the Law — Fri, 14 Jul 2006 04:25:55 +0000

Debate on Saul Cornell’s “A Well Regulated Militia”

By: Norman Heath

Norman Heath — Fri, 14 Jul 2006 01:17:49 +0000

Dr. Cornell makes a compelling argument. Since the Framers were concerned with perpetuating the militia, and not individual gun ownership, I would be gratified to read his explanation as to how the citizens attain standing as members of the militia unless they be designated as such under either state law or under federal law. Is Dr. Cornell asserting that the amendment empowered the states to specify militia membership outside the bounds of federal militia law? That in introducing the amendment the Federalists willingly re-opened the rancorous framing debate over delegation over militia powers in the body of the Constitution? Is Dr. Cornell asserting the Second Amendment protects state militia law from federal preemption? Having assumed that the amendment concerns itself with the militia, is seems incumbent on Dr. Cornell to explain the relation of the amendment to militia law, rather than gun ownership. There is a body of law concerning federal preemption of militia law and I would much like to hear how Dr. Cornell squares that jurisprudence with his interpretation.

Norman Heath

By: The Volokh Conspiracy

The Volokh Conspiracy — Thu, 13 Jul 2006 13:17:31 +0000

Tushnet v. Cornell On Guns:

Oxford University Press has just published A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America by Ohio State professor Saul Cornell. The book challenges both the “individual right” and…

By: Mark A. Graber

Mark A. Graber — Mon, 10 Jul 2006 15:21:29 +0000

I wonder whether we might push Professor Cornell’s arguments with respect to other provisions of the Bill of Rights, most notably the First Amendment (the following may be a slightly plagiarized version of some arguments that Howard Gillman and Akhil Amar have been making). Professor Cornell notes, “[m]y conception of the original understanding is informed by the idea of well regulated liberty and the related notion that a civic right was as much an obligation as it was a trump. Government could not compel individuals to publish; they could compel them to bear arms.” If this is correct (and I think it is more correct than not), then we also ought to understand the free speech clause of the first amendment as also protecting a civic right, rather than an Dworkian trump against public policy. To a fair degree, we may also tell the same story about how this civic duty morphed into a contemporary individual right. But do we not then confront the Sandy Levinson question, namely, why should constitutional decision-makers, courts or elected officials, be bound by the old civic right conception of the Second Amendment but the contemporary individual right conception of the First Amendment.