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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, June 22, 2016

"Any honest historian of the early Republic will tell you that lax gun laws are not in fact pro-Second Amendment; they are anti-Second Amendment."

Saul Cornell wrote A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  

Interesting book.  He basically supports a pro-gun regulation approach to the 2A though his historical studies concludes the individual (common law) right to self-defense is separate from the purposes of the amendment itself (at least the original understanding). That's fine really though basically (McDonald v. Chicago in effect sort of says this) over time the people had a different view that matches the conclusion of D.C. v. Heller

He wrote a guest op-ed in today's NY Daily News (some good stuff today but again what's with doing away with daily movie and t.v. coverage; even the t.v. listings were cut in half).  Let's break things down. The most basic argument is okay enough:
Any honest historian of the early Republic will tell you that lax gun laws are not in fact pro-Second Amendment; they are anti-Second Amendment.
He in part appeals to the "security of the free state" (which I take to be an appeal to republican principles) language as giving the state some power to regulate to guard against domestic violence.  This is an interesting approach; most in support of regulation are more inclined to focus on the "well-regulated" part in particular. Cornell next notes Heller, in his words, supports "reasonable regulations," which is a bit misleading since that in legal jargon would suggest a lower level of scrutiny.  Scalia in fact specifically rejected "reasonableness" review here though did not clarify if strict scrutiny was required.  It is fairer as a colloquial summary.

Cornell notes Scalia appealed to original understanding and then cites some examples of Founding Era regulations.  Cornell does note that we have a stronger sense of due process today, e.g., so need not follow them exactly.  Which is good since things like loyalty oaths are not a good idea.  We should not deem practices against loyalists while a war was ongoing on American soil with British troops breathing down our necks as quite the best approach. There were people at the time wary about emulating some of the things we did there. It does suggest the limits of original understanding.  He notes:
Under common law, any person in the community could approach a justice of the peace and demand that an individual be preemptively disarmed if they posed a danger to public safety. Such persons would be required to post a peace bond, much like a modern bail bond.
I'd like to know a bit more about this, but it doesn't quite sound like the terror watch list idea. The judiciary (to the degree "a justice of the peach" was that) seems to be involved.  How did one show "they posed a danger to public safety" and what does "preemptively disarmed" means exactly?  Was it a one-sided affair?  Was notice required? Were they able to offer proof then and there before being disarmed that the peace bond was illegitimate? The concern with the proposals is the after the fact, basically backward approach where the executive gets to block purchase and only then you can challenge it.  
It is not the real Second Amendment written by the Founders that poses a barrier to taking decisive and reasonable steps to lower the carnage in our streets; it is the mythical Second Amendment imagined by the gun lobby.
True but that's rather vague.  What exactly is "reasonable" here?  Bottom line, the article basically refutes an extreme argument and defends the broadest strokes of the pro-regulatory side.  This helps a bit, but doesn't quite tell us what specifically is okay.*  It's only an op-ed, so realize its limitations in form. Still, would help to learn a bit more how the terror watch list idea fits in here.  For instance, if the individual wrongly claimed a peace bond was warranted, was s/he open to civil damages?  Little things like that alone might make make the proposals different.

But, sometimes the very basics do help reach agreements regarding basic givens especially for hot button topics.

ETA: I emailed the author and he provided me a link to this article and referenced the book. My reading of the article is that it concerns carrying guns in public places and that colonial practice put strong licensing restraints on that.  Interesting perhaps for that issue which isn't settled yet.

Did find this article (see particularly around 717) that does appear to cover the bond issue.  "One means of conserving the peace, apart from prosecuting those who breached it, was to order persons who posed particular risks to provide sureties of the peace." This is separate from regular prosecutions, has a "probable ground" standard and involves what sounds like a form of bond and judicial oversight (“to bind the party to appear at the next sessions of the peace").  

Not sure how that applies here though sounds like judicial involvement on the front end would be required.  


* For instance, Sen. Collins has put forth a compromise version of the terror watch list proposal which has enough Republican support that there appears to be a fighting chance for it to reach cloture.  So it can die on the House floor (after the sit-in folks leave).  Sorry.  A tad cynical.

Seriously, the ACLU opposes it. A NRA/ACLU opposition here just might be too much, especially since again quite seriously, it's probably a lost cause in the House anyways.  Re-funding research (maybe all those John Oliver encouraged calls will bear fruit)  seems a lot more safe in this respect.  The whole thing seems gratuitous.  A general background bill also would be more copacetic though due process needs to be safeguarded there too.  But, not holding my breath there.