A Fordham professor folds, spindles, and mutilates colonial-era history to claim that the Founding Fathers supported stringent gun control laws.
One of my Facebook friends was delighted to come across an article from an American History professor at Fordham trumpeting that the Founding Fathers loved gun control, and interpreted the Second Amendment to mean that gun ownership should be subject to draconian government restrictions. According to Saul Cornell, the Founders:
- Required weapons registration
- Prohibited public carry
- Limited stand-your-ground laws to the home
- Mandated safe storage
- Required loyalty oaths to protect weapons
As Cornell sums up his own conclusions, heavy-duty gun regulation was the name of the game for the Founders:
The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.
I have been researching and writing about the history of gun regulation and the Second Amendment for the past two decades. When I began this research, most people assumed that regulation was a relatively recent phenomenon, something associated with the rise of big government in the modern era. Actually, while the founding generation certainly esteemed the idea of an armed population, they were also ardent supporters of gun regulations.
This sounded wrong to me, since I’ve read verified quotations from the Founders that see individual arms’ possession as an important bulwark against tyranny. If you give the nascent tyrant preemptive control over arms, you’ve vitiated that principle — and encouraged the road to tyranny.
Still, I haven’t done any in-depths studies about the Revolutionary Period so I could be wrong. I therefore turned to my friend and fellow blogger, who knows more about the Revolutionary Period than any person I’ve ever met. For Professor Cornell, as for most academics, Revolutionary history is a job. For Wolf Howling, it’s an overriding passion. I’d trust him on the subject before I’d trust anyone else. Here’s what he wrote me when I put Cornell’s article before him:
This article looks good on the surface, but if you dig down, Cornell’s argument misinterprets history and, significantly, relies upon authorities that are deeply hostile to the Second Amendment. For example, regarding his first point, about alleged registration, Cornell links to an article he wrote (along with Kevin Sweeney) for the Chronicle of Higher Education, entitled “All Guns Are Not Created Equal.” Cornell cites to his own article to support his claim that well-regulated militias were in fact subordinate to and controlled by the state — as opposed to being a cohort of adult men who could be mustered on short notice, complete with their own arms, to defend themselves and their community against enemies both foreign and domestic.
Cornell and Sweeney were forced to admit that Michael A. Bellesiles pretty much made it up when he wrote an initial best-seller claiming that guns were a negligible part of 18th century American life. However, contend Cornell and Sweeney, those countering Bellesiles, especially the NRA, made up their own history — or, as the article calls it, “the latter mythical history, which the U.S. Supreme Court majority swallowed whole in District of Columbia v. Heller (2008) when it ruled that the “Second Amendment protects an individual right to possess a firearm,” . . .” In the same article, Cornell and Sweeney insist that Americans weren’t worried about a tyrannical government disarming the people. The whole concept of a “people’s militia” or “civilian militia” is, according to Cornell and Sweeney, “rhetorical terms found in the Heller decision that have no historical basis.”
Really? The fact is that Cornell is someone who has taken the position that everything that Scalia wrote in the majority opinion in Heller is mere “myth.” The wise person would read Heller, including the dissents, before buying into anything that Cornell writes.
From the get-go, his sweeping generalizations are a problem. For example, his assertion that the Founding Fathers would have “loved” laws to restrict Second Amendment rights is just asinine with no support at all in any of the Founders’ speeches, letters, or journals. Indeed, most of these men had just fought in a Revolution that began at Lexington and Concord when the British left on a mission that day specifically to disarm the people of colonial Massachusetts. The colonialists responded with bullets.
Writing one year after the Revolution ended, when the U.S. contemplated a standing army, James Madison, in Federalist No. 46, hastened to assure concerned Americans that a self-armed citizen militia would be more than adequate to keep potential federal tyranny in check (emphasis mine):
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
That is a Founder who believed that well-armed citizens were a necessary bulwark against the risk that their own government would turn against them, just as the British government had, in fact, done a few yars earlier.
I expect that any modern-day attempt by the Progressive left to disarm the great swath of Americans would be met with the bullets Madison prophesied. Indeed, I have long expected the boiling cauldron of America to explode over just that.
Despite his scathing remarks about Heller the underlying material to which he links, Cornell does not directly challenge Heller in this article. Instead, he argues for expansive rights to regulate guns. He seems very comfortable with the notion of restricting individual rights to keep and bear arms so as to render the Second Amendment a nullity — and is willing to adjust history to support this goal. Here’s a point-by-point breakdown of Cornell’s arguments.
1. Gun Registry:I am intimately familiar with the colonial laws requiring all able-bodied men to respond to militia musters, laws that required that they arrive at muster with specific arms, powder, shot, and cutlery. And I am well aware that the colonies kept a store of weapons for those who might show up without their arms. To use those facts to assert that colonies kept a gun registry is ludicrous. Indeed, if you follow one of Cornell’s links, he cites colonial Rhode Island law holding that each person at muster would be inspected upon arrival to ensure he arrived with arms. There’s no way to shoehorn that into an argument for a gun registry.
But let’s assume, completely arguendo, that you could shoehorn it. If there had been a registration requirement, that 18th century gun registry would not be have been to allow the government to disarm gun owners if it so desired. Instead, it would have been to allow local governments to provide citizens with better arms if the individuals did not have a satisfactory weapon. The only purpose of a modern gun registry would be to give government information should they want to disarm an individual. Call me crazy, but that seems a bit more than a subtle distinction.
2. Public Carry: Here, the author is claiming that people could not possess weapons outside of their own homes, as if the need to defend oneself or to protect others ends the moment a person walks out of his house. (One wonders, under this theory, how people were able to hunt in a time before prepackaged meat sat in refrigerated contains in grocery stores.) The author makes sweeping statements of British common law that applied in certain locales, but hardly throughout the United Kingdom as a whole. Moreover, while British common law as it existed before 1776 did inform many of our laws based on British rights, the degree to which we adopted British common varied depending on our American experience — and in particular, the right to keeps and bear arms.
After all, the point of the revolution was to break away from those British laws that constrained natural rights. As Scalia pointed out in Heller, the influential treatises of Story and Raul that existed around 1810 distinguish the Second Amendment from the British right to bear arms explicitly because Britain narrowed that right with laws enacted after the English Bill of Rights of 1689.
There is more than ample evidence to support Scalia’s conclusion that the Second Amendment created an individual right to keep and bear arms to protect one’s self as well as others. Heller did not go beyond making that right absolute in one’s home, leaving the other questions for future decisions. However, given that throughout America in the immediate aftermath of the Revolution, limitations on the right to public carry were very much the exception, and given the lack of any such strictures in the Second Amendment itself, I cannot see anything approaching a colorable argument for saying that the Second Amendment can be made into a virtual nullity by placing any sort of blanket provisions on public carry.
3. Stand-Your-Ground Laws: I am assuming that Cornell would make any self defense with a gun outside of the home an ipso facto crime. Certainly there was nothing that the Founders “loved” about such laws, nor the lack of such laws, in 1789. There was no duty to retreat in law at the time, nor a right to “stand your ground.” Whether there should be a duty — and indeed, the right to defend with a gun after retreating — are questions of the modern era, but I strongly suspect this author has raised the issue as a back door to again turning the Second Amendment into a nullity.
4. Safe Storage Laws: Heller spoke specifically to this. Laws that prevent people from immediately accessing their guns for self defense in the home violate the Second Amendment. Period.
The sole example that Cornell gives to count this notion is a local ordinance in Boston that prevented having loaded guns sitting in the house. This law was indeed a pragmatic restriction for health and safety. On more than one occasion during the 18th century, fires swept through Boston. One can imagine, as Cornell does, that loaded guns at the time could go off in a fire. But that is a far cry from the “safe storage” laws discussed in Heller, laws that were not concerned with fire safety, but rather seriously impeded being able to quickly access and immediately load a fire arm. This is yet another back door the author would use to nullify the Second Amendment.
5. Loyalty Oaths: Cornell seems to argue that none of the Founders saw the Second Amendment as creating an armed populace to act as the ultimate check and balance on our government should it turn tyrannical. He should be jailed for that degree of historical rewrite. Let’s take one contemporaneous example, this from a letter Thomas Jefferson wrote in 1787, the same year the Second Amendment was proposed:
God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. … What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.
Correct me if I am wrong, but I think that is a complete refutation of the author’s ridiculous argument.
Cornell claims that the Founders “loved” to engage in large-scale disarmament of the populace because they made the continued right to bear arms conditional on swearing a loyalty oath. What the author neglects to point out is that, when the government did this, we were a year into a civil war, not just against Britain, but against many loyalists within the colonies themselves; that is, colonists who supported the British. To leave such people armed as a matter of policy during war would be inviting mayhem. Anomalies do happen during civil war, such Lincoln’s suspension of habeus corpus. That does not mean that the anomalies justify the continuation of the policy at the conclusion of a civil war.
To buttress his specious argument that the people have no right to bear arms as a check and balance on government, Cornell points out that taking up arms against the United States government is written into law as treason. Wow. Let’s put this into perspective. In 1776, Great Britain also had laws on the books against treason, the penalty for which was still then hanging, drawing and quartering. And the day Great Britain tried to disarm Americans was the day we went to war, April 19, 1775. Our law against treason does not justify disarming Americans. To the contrary, as Jefferson stated at the time, all of history, and particularly our history, tells us that sometimes treason is necessary.
I want to make one last point, which is that the Progressives demanding that American disarm themselves do not realize just how close we are to a second civil war in this country. Allow me to explain.
Our Constitution is a neutral document. It is not progressive nor is it conservative. It does nothing more than ensure that we have a government that operates in a classically liberal tradition. I probably am just a touch left of center on social issues, but I live and die by the Constitution and the rule of law. Both are under assault.
That said, the Left paints as racist and violent anyone who defends the Constitution as written and pushes back against what the Lefts’ century-long assault on our Constitution. Those who defend the Constitution find especially reprehensible the way in which the Left constantly attempts to destroy the Constitution without the bother of ballots, legislation, and formal amendments. Until Obama, these attacks on the Constitution were made almost entirely through the Supreme Court. Obama, our first neo-Marxist President, brought all the little neo-Marxists out of the woodwork pushing for permanent dominance, while Congress went supine because Obama was black, allowing him to do things that would have led any other President to be impeached.
Obama drove us far past the point of a Constitutional crisis in several ways. One way was to use the regulatory bureaucracy to fundamentally alter our nation through the passage of regulations with the force of law for which Congress had never voted and would never approve. The HHS mandate attacking religion, the EPA decision holding carbon a pollutant, and the FCC decision to regulate the internet are blatant examples.
Another method was to use the Department of Justice to declare legal principles that Congress did not pass, such as requiring colleges to dispense with due process in a war on men, and the DOJ’s unilateral rewrite of the Civil Rights Law of 1964 to claim that it also protected gays and the transgendered.
Lastly, there was Obama himself, legislating from the Executive in the very definition of tyranny. DACA itself is the prime example.
To top it off, the rule of law has been degraded more badly in recent years than ever before in our history. The sham investigation of Hillary and her cohort over the emails, then their inevitable exoneration, was simply an obscenity. That was the rancid fruit on top of eight years during which Obama and his bureaucracy used congressional subpoenas as nothing more than toilet paper. Even when the evidence of wrongdoing was blatant, such as with the IRS’s attacks on conservatives or NOAA’s change to our temperature records, Obama sat back smiling cheerfully and Congress, even when under ostensible Republican control, allowed its fear that it might be called “racist” to paralyze it.
I honestly expected a second civil war to happen with Hillary’s election to the Presidency. I didn’t fear that would happen just because she was elected. (If you want to see what that looks like, you need only review the Democrats non-stop hysteria about the mere fact that Trump won the Electoral College.) However, had Hillary won, she would have become president of a country in which constitutional conservatives are more than upset. We have seen armed incidents already out West with Cliven Bundy, and there was an armed group fully prepared to stop the feds from arresting that court clerk who refused to issue a gay marriage license. It was her attorney who convinced them to hold back.
It seemed to me that all that it would take to light a fuse would be when (not if, but when) Hillary, through her Supreme Court appointments, overturned Heller, and then bypassed Congress to use her regulatory agencies to issue draconian regulations significantly limiting the right to keep and bear arms. All it would have taken then was one federal raid to seize weapons and we would be in a second civil war.
Trump’s election has put a hold on that, for now. But it is a tenuous hold. The DNC and its operatives in the media keep pushing and pushing. Their claim that Trump is a Russian asset and that he “colluded” with Russia constitute a “push.” So too is the way in which the press and the members of Obama’s administration manipulated those claims to bring about the political assassination of Michael Flynn. And those are just two examples of the Lefts’ endless push to undo the election. With the tragedy in Florida, with CNN’s two-minutes of hate “town hall,” and with its unlimited attack on the NRA, we’re seeing the Left ratchet up that push, putting us back on the brink.
If the progressives were ever able to live out their dream and impeach Trump without just cause . . . well, that would also light the fuse. Not only that, we deserve answers about what our government has done to taxpayers, what it has done in terms of spying on citizens, and what it did when it purported to investigate Hillary’s conduct as Secretary of State. Constitutional Americans are fed up and concerned about Obama-style stonewalling and cover-ups. We need the truth in whatever direction it may fall. That is the only thing that I can see that will walk us back from the brink this nation sits on today.
Jefferson’s warning should ring in everyone’s ears. “Common sense” gun control that is nothing more than a back door to nullifying the Second Amendment will never be tolerated by about half this nation. And we are rapidly nearing the point where even the question of it may be moot.