Gun Rights, Gun Control, and the Search for a Usable Constitutional Past
Spring 2017 Public Lecture Series
For the final public lecture series event of a busy 2016-17 academic year, Fordham University Paul and Diane Guenther Chair in American History Saul Cornell came to campus on April 5th for a talk focused on examining the complex set of connections between race, history, contemporary gun culture, and the Second Amendment.
First up, though, was a lunch seminar with Kinder Institute faculty, postdoctoral fellows, and graduate students in which Prof. Cornell unpacked and critiqued the evolution of originalist jurisprudence before briefly looking at its current iteration in the context of the Supreme Court’s landmark ruling in the 2008 Second Amendment case, District of Columbia v. Heller. Emerging, he argued, as a backlash to the Warren Court, originalism began as a form of judicial restraint that attempted to unearth the Founders’ constitutional intentions and apply them to resolving then-contemporary judicial questions. Putting aside the fact that the very act of defining ‘Founders’ is itself fairly problematic, “Originalism 1.0,” as he called it, was intellectually and judicially hamstrung by the impossibly complicated task of identifying singular intentionality within a text produced by—within a text that reflects the distinct political visions of and the nuanced compromises reached between—multiple voices.
“Originalism 2.0,” he explained, doesn’t fare much better as a viable judicial philosophy. Framing it as an attack of sorts on the New Deal regulatory state, he described how the second evolution of originalism exchanges judicial restraint for judicial engagement and intentionality for Founding-era public meaning as the basis for its jurisprudence. Here, too, he argued, multiplicity complicates matters. Specifically, the idea of a fictive reader on whose behalf the Founders were acting—a notion central to “Originalism 2.0” if already dismissed by literary critics—falters when considered in light of the range of interpretations that are inevitably born when any text travels into, and interacts with individuals within, the public sphere. The shortcomings of communicative content/public meaning originalism are on display, Prof. Cornell noted in concluding his presentation, in late Justice Antonin Scalia’s decision in Heller. For one, in a somewhat unprecedented move, Justice Scalia more or less avoided any analysis of the quite important historical context of the Second Amendment’s preamble—most notably its reference to “a well regulated militia”—in his decision. Secondly, his interpretation of the late-eighteenth century public meaning of “arms”—particularly his false analogy between arms : guns : handguns—does not stand up to rigorous historical scrutiny, which reveals that handguns, in fact, made up a small and somewhat insignificant fraction of arms owned in post-Revolution America.
This vision of an eighteenth-century gun owner—and how it tracks onto contemporary gun debates and cultures—served as something of a starting point for Prof. Cornell’s standing room only public lecture on the evening of April 5th in MU’s Mumford Hall. Juxtaposed on his opening slide with a woodcut of a Virginia militiaman, long gun in hand and hatchet on his belt, were photos of a white couple gleefully wielding automatic weapons in a Starbucks and of a young African-American male, openly and legally carrying a rifle through the Texas streets moments before being wrongfully detained as a suspect in the July 2016 shooting of five police offers in Dallas.
As Prof. Cornell would go on to show, reading these images and others like them in conversation with current research on attitudes about gun ownership and gun control reveals the complicated reality of gun culture in contemporary America, generally, and today’s problematic relationship between race and the Second Amendment, in particular. On a broad level, the images of guns being publicly brandished encapsulates how wildly disparate regional attitudes about guns and gun rights in the United States have become manifest in equally disparate laws that reflect and serve a divided national constituency. Drilling down further, though, Prof. Cornell explained, we also see how the legislative manifestation of this divide supports highly disturbing trends that relate to race and guns. On one hand, we confront how relatively lax purchase laws in different states and regions map onto gun trafficking into—and thus access to illegal guns in—urban centers plagued by high violent crime rates. Perhaps even more alarming, recent scholarship also reflects an intensely troubling correlation between racial animosity and likelihood of gun ownership.
And we might turn to history, he added, to identify the roots of the present problem, which dates at least to the adage about the antebellum South being ruled by “the lash and the pistol” and, soon after emancipation, to the disarmament of freedmen and the rise of paramilitary organizations like the Klan during Reconstruction. This narrative, Prof. Cornell suggested, reflects more than the coming together in the South of a history with slavery and subsequent forms of institutionalized race-based oppression and a historically permissive regulatory tradition when it comes to guns. From thinly veiled racist rhetoric in NRA literature, to the emergence of gun control in California as a response to black militancy, to the volume of cases cited in the majority opinion in Heller that trace back to antebellum Southern judges, the problematic relationship between race and the Second Amendment by no means ended with legally re-armed black militias bringing stability to the Reconstruction South but, instead, continues to mutate and rear its head today.
While the problem admittedly won’t solve itself over night, Prof. Cornell did identify certain steps that could be taken to begin enacting laws aimed at achieving the greatest common good at the least cost to gun owners, including: accounting for CDC and NIH research during the process of drafting gun legislation; instituting the kind of culture changes that were central to auto fatalities plummeting over the past twenty years; and acknowledging where common sense measures—such as establishing ATF databases for closed gun dealers—are both necessary and easily implementable.
In addition to his lunch talk and public lecture, Prof. Cornell also visited the April 6th meeting of the Kinder Institute’s Journal on Constitutional Democracy course, as well as a Second Amendment class at the MU Law School later that afternoon, to speak with students about his current research. We would also like to thank our hometown paper, the Columbia Missourian, for coming out on the evening of April 5th to cover the lecture.
Saul Cornell received his M.A. and Ph.D. in History from University of Pennsylvania, and he currently serves as Paul and Diane Guenther Chair in American History at Fordham University. He is the author of The Other Founders: Anti-Federalism and the Dissenting Tradition in America (UNC Press, 1999) and A Well-Regulated Militia: the Founding Fathers and the Origins of Gun Control in America (Oxford University Press, 2006), as well as the co-author of the textbook Visions of America: A History of the United States. He is the former Director of the Second Amendment Research Center at the John Glenn Institute, and his recent work in The Atlantic on gun laws in the United States can be found here and here.