Interesting side-note on Heller Decision

[Rex B]

from the Volokh Conspiracy:

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Posted by David Kopel:
St. George Tucker, Saul Cornell, and Justice Stevens:
http://volokh.com/archives/archive_2008 ... 1229984079" onclick="window.open(this.href);return false;


[1]The Lecture Notes of St. George Tucker: A Framing Era View of the
Bill of Rights has just been published by the Northwestern University
Law Review Colloquy. The article, by David Hardy, will also appear in
the printed edition of the N.W.U.L. Rev.
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 included extensive analysis, in footnotes
and in an appendix, explaining how the English common law of
Blackstone had been changed in America. 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. Hardy finds that
Tucker's view of the Constitution was far more libertarian (regarding
issues such as free speech and press, or warrantless searches) than
either modern Supreme Court doctrine, or the views sometimes ascribed
to the Founders.
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.
The Cornell article is St. George Tucker and the Second Amendment:
Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L.
Rev. 1123 (2006). Perhaps the error in article, and the derivative
error in a Supreme Court opinion, could have been averted with bettter
cite-checking.
Readers interested in Tucker may also be interested in my article
[2]The Second Amendment in the Nineteenth Century (BYU L. Rev.)(also
discussing the scholarship of Tucker's son Henry St. George Tucker,
and his grandson John Randolph Tucker), and in Stephen Halbrook's
response to Cornell, [3]St. George Tucker?Second Amendment:
Deconstructing "The True Palladium of Liberty" (Tenn. J.L. & Pol?.

References

1. http://colloquy.law.northwestern.edu/ma ... ights.html" onclick="window.open(this.href);return false;
2. http://davekopel.org/2A/LawRev/19thcentury.htm" onclick="window.open(this.href);return false;
3. http://law.bepress.com/cgi/viewcontent. ... t=expresso" onclick="window.open(this.href);return false;
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Interesting that the major dissenting opinion in Heller was based, at least in part, on an incorrect reading of an important early work on the subject.

[stevie_d_64]

This is a great find Rex...

[jimlongley]

One must wonder if Justices ever retract their erronous dissents when they are proven wrong.

[Rex B]

The Volohk Conspiracy is a blog run by a Libertarian attorney of some regard.
They discuss constitutional law at a level far above my ability to comment, but it's an interesting daily read if you are into legal stuff.

[bridge]

A SUPREME COURT JUSTICE opinion partially based on BAD RESEARCH with constitutional amendment impacts should be on the front page of every major news paper. I wonder if Stevens has a public email address

[Pinkycatcher]

A SUPREME COURT JUSTICE opinion partially based on BAD RESEARCH with constitutional amendment impacts should be on the front page of every major news paper. I wonder if Stevens has a public email address

That happens quite often actually, mainly because they are very busy and they rely on other peoples readings and don't read the sources themselves.

Happens a lot with Miller, each court reads the last court and changes it a little, so it keeps on changing from the original decision. Most courts recently have read Miller to be in favor of the militia reasoning, when actually it only banned SBS's because nobody showed no military use for them (which is wrong in the first place) and had nothing to do with individual or collective rights. It was a horrible decision anyway, the defense attorney was a public defender who didn't show up to the case, and Miller was already dead at the time of the decision.

[ELB]

The author of that article, Dave Hardy, has his own blog at http://armsandthelaw.com/" onclick="window.open(this.href);return false;

[Charles L. Cotton]

This was discussed at length during our NRA Civil Rights Defense Fund board meeting this month. Saul Cornell got caught in a blatant lie and he has managed to embarrass Ohio State University in the process. (He's a professor of history at OSU.) He is going to publish a "rebuttal" and I'm sure the university basically told him to get out there and "just say something!"

His lie could cause as much heartburn for OSU as Michael Bellesiles caused for Emory University when he got caught falsifying his "research" on which is book Arming America: The Origins of a National Gun Culture was based. Bellesiles was awarded the Columbia University's Bancroft Prize, but it was revoked when his fraud was discovered. Bellesiles resigned from Emory in disgrace.

I'm sure the OSU administration is having nightmares about a Bellesiles-like avalanche of criticism. Catching Bellesiles lie took a lot of work, but simply cross-checking the pages of St. George Tucker's writings would be incredibly easy, if anyone had cared about accuracy. Bellesiles and Cornell -- a team to make Sarah Brady proud!

Chas.