"Unambiguously describing the Second Amendment as encompassing a personal right"

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At The Volokh Conspiracy, David Kopel highlights an important new article on St. George Tucker that has particular relevance to the debate over D.C. v. Heller and the original meaning of the Second Amendment:

St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone's Commentaries was the by far the leading legal treatise in the Early Republic…. Tucker's analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service. Justice Scalia's majority opinion in Heller quoted from Tucker's American Blackstone.

Justice Stevens' dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker's 1791-92 lecture notes described the Second Amendment as relating only to the militia.

David Hardy's article reviews Tucker's lecture notes, as they involve various freedoms enumerated in the Bill of Rights….

As for the Second Amendment, Hardy finds that Cornell's article, and therefore Justice Stevens' opinion, contains a major factual error: the militia language which Cornell quoted was not from Tucker's description of the Second Amendment. The language was from Tucker's explanation of Article I's grant of militia powers to Congress. Tucker's description of the Second Amendment comes 20 pages later in the 1791-92 lecture notes, and is nearly a verbatim match with the text Tucker's 1803 book, unambiguously describing the Second Amendment as encompassing a personal right for a variety of purposes, not just for militia service.

Whole thing here. Kopel's reason archive here. Brian Doherty on the story of D.C. v. Heller here.

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  1. Oh Snap!

    Justice Steven’s just got BlackstOWNED

  2. Wow. We expect that the Supreme Court will at least get its scholarship right, especially when such a passage as that cited above is so easy to track in historically important works that are readily available to the Justices and their clerks. Good thing Stevens’ opinion fell on the losing side of the case. I have to wonder how many other things about our system of government and law were propagated into “common knowledge” by such mistakes as this.

  3. Justice Stevens’ dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker’s 1791-92 lecture notes described the Second Amendment as relating only to the militia.

    Is Saul Cornell following Michael Bellisle’s career path ?

  4. Or John Lott’s?

  5. That’s a hell of a screwup for Cornell, but I don’t think one can fault Stevens too much. We all rely on the scholarship of others a lot, and generally rely on their peers to ferret out errors. Which just happened.

  6. “Wow. We expect that the Supreme Court will at least get its scholarship right,”

    Or expect that they are capable of reading the actual text of the Constitution.

    The Second Amendment quite cleary states that the right of the people to keep and bear arms shall not be infringed.

    It does not say “right of the militia” or “right of people in the militia”.

    That phrase is in the independent clause of the sentence and it clearly ennumerates an individual right. The preceding “militia” clause is a dependend clause and the independent clause, by defintion, is not dependent on anything contained therein.

  7. Gilbert, I make that same arugement all the time. It always falls on deaf ears.

  8. joe,

    John Lott didn’t lose his job.

  9. Gilbert Martin,

    Not to quibble about the individual right thing, but you are quite wrong on the interplay between grammar and meaning.

    The existence of a dependent clause indicates that the meaning of the independent clause under-determines the author’s meaning. Otherwise, there would be no dependent clause (if we buy into Grice’s maxim of quantity).

    So, the fact that their is both a dependent and an independent clause indicates that the authors felt in necessary to provide a certain amount of context (dependent clause) so that readers could properly interpret the indendent clause.

    Second point.
    If the language of the second was as clear as you imagine, there would not have been such a raging debate over that meaning for so many years.

    Sorry.

  10. John Lott also didn’t make up bullshit.

  11. Yeah, you tell him, guys!

  12. John Lott fucked up royally and gave anti-gunners the ability to point to him whenever Bellesiles is (rightfully) brought up, all so he could use a sockpuppet to support his arguments.

    EPIC FAIL. Fuck him.

  13. I use Bellisle’s Bancroft Prize trophy for target practice!

  14. He’s a fucking weirdo for making up a fan, but that says nothing about his work. Someone as nitpicky as joe ought to be able to tell the difference.

    But I agree with Epi. fuck him.

  15. “Not to quibble about the individual right thing, but you are quite wrong on the interplay between grammar and meaning.”

    Not on your say so – or anyone else’s

  16. Wish the Federal constitution read like the Pennsylvania constitution: Art.1 Sec.21
    “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

  17. Creech, that’s a great way to put it in a constitution.

  18. I find it rather disheartening that Justice Stevens would use a third hand source instead of a second hand source that was available. If I had pulled that shit in school, I would have had my ass handed to me by the professor.

  19. Warty | December 23, 2008, 5:12pm | #

    He’s a fucking weirdo for making up a fan, but that says nothing about his work.

    Actually, it was because his work was so widely discredited that he felt the need to defend himself via sock puppet.

  20. Wish the Federal constitution read like the Pennsylvania constitution: Art.1 Sec.21
    “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

    But then we’d get people who say that the right to bear arms for hunting or sport wasn’t protected.

    It’s the eternal problem of defining rights. If you lay out what is protected, you’re limiting the reading of the right. If you don’t, you invite endless argument about what, in concrete terms, the right really protects.

  21. Not on your say so – or anyone else’s

    Yeah, wouldn’t want to have any of your opinions evolve based on anyone else’s input.

    That would show lack of faith.

  22. Gilbert Maritn | December 23, 2008, 5:19pm | #
    “Not to quibble about the individual right thing, but you are quite wrong on the interplay between grammar and meaning.”

    Not on your say so – or anyone else’s

    This from a guy who can’t even get his own tag spelled properly.

  23. “But then we’d get people who say that the right to bear arms for hunting or sport wasn’t protected.”

    You could probably make that right one and the same with liberal use of “ITS COMING RIGHT FOR US!”

  24. Ya’ll are wrong to excuse Steven’s misuse of the source as an honest mistake. The gun takers will do anything to further their cause.

  25. Saul Cornell has quite the history of “factual errors” and distortions.His career is as a Joyce Foundation funded third string replacement for Bellesiles*.

    *who unfortunately is still gainfully employed teaching history at Central Connecticut State University in New Britain, Connecticut according to wiki.

  26. Wish the Federal constitution read like the Pennsylvania constitution: Art.1 Sec.21
    “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.”

    Doesn’t stop PA (my home state) from constantly questioning said right. We are constantly fighting in this state to prevent more gun control legislation. Not one has ever been successfully challenged on constitutional grounds. The Commonwealth of Pennsylvania’s Constitution (as that of the United States) is just so much worthless butt-wipe in the hands of our legislators and executives.

  27. Ya’ll are wrong to excuse Steven’s misuse of the source as an honest mistake. The gun takers will do anything to further their cause.

    Flip this around for a second. Let’s presume for the moment that historical interpretation and documents support only the collective mode of gun ownership.

    Are you saying you *wouldn’t* argue dishonestly in order to hold on to your guns? Are you so sure those who are on your side would not routinely resort to the same?

    Shockingly, when the stakes are perceived to be high, people will do all sorts of unethical shit to perpetrate their notions.

  28. This is great, but even if individual gun ownership isn’t covered in the 2nd Amendment, it damn sure ought to fall into any fair list of rights protected by the 9th.

    We know that individual firearms ownership was common all throughout the colonial era. That should be enough, I think.

  29. Been following David Hardy for years. Often referred people to his writings anytime someone looked at one of my guns and asked me “Why do you need that?”

  30. joe,

    It’s the eternal problem of defining rights.

    That, in part, is why I hold that rights do not exist outside of a particular claim made in a specific set of circumstances.

    I mean, sure, we can talk about them and provide definitions for them, but just like definitions in the dictionary for words, these definitions will not encompass the meaning of the right until it is applied in the context of a specific claim within a specific set of circumstances.

    Just as a word doesn’t have a fixed meaning until it is used in a particular communicative context, a right does not have a fixed meaning until it is applied to a particular claim in the context of a conflict between individuals.

  31. Are you saying you *wouldn’t* argue dishonestly in order to hold on to your guns?

    Interesting hypothesis, lmnop. Have to think about that one. I’ve never had to argue dishonestly to hold on to my guns before. This would truly be new territory.

    Neu:

    That, in part, is why I hold that rights do not exist outside of a particular claim made in a specific set of circumstances.

    Really…interesting…

  32. Here’s to fact checking!
    (Anyone else surprised at the magnitude of the error? This is a historian and a Supreme Court justice, for crying out loud!)

  33. Here’s another longshot hypothetical: imagine that intent to decieve could be proven. Would intentionally misrepresenting something like this be legitimate grounds for impeachment?

  34. Paul,

    Your punctuation…confusing…

    But, yes, really.

    TAO and I had a long discussion about this last week on the “right to a spouse” thread.

  35. Tucker was a gun-loving mother fucker.

  36. The existence of a dependent clause indicates that the meaning of the independent clause under-determines the author’s meaning. Otherwise, there would be no dependent clause (if we buy into Grice’s maxim of quantity).

    From Article I, Section 8 of the Constitution, enumerating the powers of Congress:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    Does that mean I can challenge Disney’s copyright of Mickey Mouse using the argument that it doesn’t “promote Progress in the useful Arts and Sciences”?

  37. joe sez Actually, it was because his work was so widely discredited

    No, joe, the academics who have looked at Lott’s work have not discredited it – only the political hacks make that claim.

    Personally, I don’t think Lott’s case is all that strong – but the worst you can say about liberalized concealed carry is that it has NOT increased crime (i.e. shoot-outs over parking spots, etc.). I think Chicago School economists too often make pretty stupid arguments – particularly when attempting to apply economic theory to non-economic behavior.

  38. Are you saying you *wouldn’t* argue dishonestly in order to hold on to your guns?

    Your hypothetical has already been answered. We don’t argue that there’s an individual right to do drugs in the Constitution, or a right to not have to pay taxes, or a right to do the many other various things that libertarians think people should be able to do without permission from government.

  39. Does that mean I can challenge Disney’s copyright of Mickey Mouse using the argument that it doesn’t “promote Progress in the useful Arts and Sciences”?

    If the idiotic rational basis test didn’t exist, you sure could.

    Your hypothetical has already been answered. We don’t argue that there’s an individual right to do drugs in the Constitution, or a right to not have to pay taxes, or a right to do the many other various things that libertarians think people should be able to do without permission from government.

    You might want to ease down on the “we”. I’ve certainly heard (bad, faithless) arguments re:taxes, drug policy, etc. stemming from some pretty quirky readings of the ninth, tenth, fourteenth amendments and more.

    So, you’re right, the hypothetical has been answered. However, my intent in the first place was to throw cold water upon Mr. Ard’s automatic assumption of malicious skulduggery. I find it more likely that people, including supreme court justices, simply scrutinize more closely arguments that do not support their biases than arguments that do.

  40. Not only is it a personal right, it’s common sense.

    I want to see someone argue how gun control keeps us safe.

  41. Does that mean I can challenge Disney’s copyright of Mickey Mouse using the argument that it doesn’t “promote Progress in the useful Arts and Sciences”?

    You can challenge it based on anything you want. Disney’s copyright, however, seems to reasonably fall into the “useful arts,” unless you find that there is no utility to humor. SO, your challenge would end up losing,imho.

    The grammatico-semantic relationships between the dependent and independent clauses in your example, however, demonstrate my point. Without the dependent clause, the independent clause lacks appropriate context for clear interpretation.

  42. Interesting point, NM.

    juris, you may want to believe that Lott’s scholarship and methods are considered respectable in the academic community, because he tells you what you want to hear, but it’s just not the case. Other researchers, who judge these things other than by their political convenience, have punched plenty of holes in the research he did for “More Guns Less Crime.”

    If your comment was based on the quality of his scholarship, rather than making a political point, you probably would have followed up your assertion with some defense of his methodology, not a back-stopping version of his conclusion.

  43. I find it more likely that people, including supreme court justices, simply scrutinize more closely arguments that do not support their biases than arguments that do.

    While that is fine for us commenters, I find that completely unacceptable for SC justices.

    Ditto a physicist who goes by a 3rd hand description of what Einstein said about relativity instead of, at the very least, reviewing the derivation themselves.

  44. The Second Amendment is there to protect the people from tyranny. What does it mean if it can’t even protect it’s self? We don’t lack guns, we lack courage.

  45. Jeff,
    “I want to see someone argue how gun control keeps us safe.”

    The argument could be made, but it’s not about safety. It’s about Freedom.

  46. Now if only at least Stevens (and even Scalia) would subscribe to Reason’s feeds. Sigh.

  47. People parse the second amendment to arrive at their own predisposed notions. Obviously, the supreme court does as well. Freedom will never be embraced by all, hence it is an ongoing struggle.

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