Selective “Originalism”?

Leftist legal scholar Saul Cornell has made a career on the Second Amendment. His claim to fame comes from several articles and one major book on the origins of the right to “keep and bear arms.”

Most important, Cornell thinks that this right can be limited by government, and that the history of firearms possession in England and Great Britain supports his claim. Cornell is particularly alarmed by the oral arguments in a forthcoming SCOTUS decision. He worries that the Court will probably expand concealed carry freedoms and overturn a New York law prohibiting concealed carry in large public spaces.

But this, he says, is a “mockery of originalism.”

I agree, but not for the reasons Cornell provides. You see, Cornell lives in an incorporationist world. In other words, he believes that the Bill of Rights applies to the States. This is why he has spent so much time perusing dusty English archives to find the “gotcha” document that proves the founding generation would have approved modern firearms restrictions. 

The founding generation would have agreed with firearms restrictions, just not from the general government. We know this because States did regulate firearms in the founding period, but we also know that the Second Amendment was added to the Constitution to prevent the general government from doing the same. It could “arm” the militia by requiring men to possess a working firearm and a certain amount of powder and ammunition, but it did not specify why type of firearm and it could not “disarm” the militia by taking it away.

We also know that private individuals could outfit privateers, lead filibusters, and a own just about any weapon they wanted as long as the separate States did not regulate that activity. You could, for example, purchase fully automatic weapons and howitzers from mail order catalogs and military surplus stores. That is until 1930 when the general government passed its first (illegal) firearms regulations.

This did not mean that the States could not regulate the types of firearms people possessed. They could and still can. That is called federalism, and we know from the ratification process of the Bill of Rights–and its Preamble–that the ten amendments only applied to the general government, not the States. The 14th Amendment didn’t change that, contrary to what Hugo Black fabricated during his time on the bench.

But, articles written by men like Cornell provide great podcast fodder. I discuss Cornell, his views on firearms regulation, the Constitution, and the 14th Amendment on episode 546 of The Brion McClanahan Show.

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