Lawyers, Guns And History

Legal Analyst Andrew Cohen On Recent News Over The Right To Bear Arms

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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The Second Amendment was back in the news last week. In Washington, there was yet another hearing in a high-profile lawsuit brought to challenge the District of Columbia’s sweeping prohibition against handguns. And from New York came word that the city’s aggressive approach toward gun sellers was paying dividends even as it generated controversy. The usual rhetoric, on both sides of the issue, was issued by tribunes convinced all in the righteousness of their particular cause.

If the struggle between gun rights and gun control advocates seems as eternal as the battle between lions and hyenas, it is. At least, in America. In a solid new book: “A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America," Ohio State University history professor Saul Cornell argues that “the original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.”

In other words, Cornell posits that neither side in the epic battle has got it exactly right when it comes to trying to figure out the meaning of the Second Amendment’s grotesquely ungrammatical phrase: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The question now is whether the historian’s scholarship enters into the bloodstream of the gun debate and, if so, whether it changes either the temperature of the fight or the attitude of the judges who ultimately must referee the match.

Being the busy bureaucrats and zealous lawyers that they are, I’m guessing that the folks on New York Mayor Michael Bloomberg’s "criminal justice" staff haven’t studied Cornell’s thesis or figured out how exactly it will help or hurt their cause. That cause right now is suing gun sellers (both in- and out-of-state) who are accused of violating the City’s ban on bad gun sales. Six such out-of-state gun dealers agreed last week to allow a court-appointed specialist to monitor their business to prevent straw sales and other illegal activity. At the same time, 12 more dealers were sued, the New York Times reported, as the result of a program that has attracted both admirers and detractors around the nation.

Meanwhile in the nation’s capital, in a case that attracted far more attention from right-wing bloggers than it did to major media outlets, District of Columbia officials went to federal appeals court to defend their attempted ban on all pistols (and not just sawed-off shotguns or other weapons that typically have been banned in jurisdictions around the country). At the heart of that case is whether the Second Amendment confers an “individual” or "collective" right to bear arms. Paging Professor Cornell! — who argues that it does neither and whose on-the-one-hand/on-the-other-hand book should be read by the D.C. Circuit Court judges involved in the case no matter which side of the great divide they happen to fall.

The good professor sees the 2nd Amendment as little more than a hotly-debated, much-negotiated (and for that reason quite opaque) memorialization of the competing and sometimes conflicting views about guns held by delegates from the ratifying states. When James Madison began to look at recommendations to the Constitution from some of the states he saw, in Cornell’s words “that “all five (of the recommending) state conventions had recommended that the Constitution include a prohibition on standing armies in peacetime; four demanded some type of explicit protection for the right to bear arms; two affirmed the principle of state control of the militia; and two proposed limits on the use of the militia outside the state.”

Moreover, at the time, Cornell writes, “The right to keep or use firearms outside the context of the militia … did not appear on Madison’s comprehensive list of possible amendments.” That would come later, apparently during the Senate debate over which initial amendments to the Constitution would which then be submitted back to the States for ratification.

"The adoption of the Second Amendment," Cornell writes, "did not settle the meaning of the right to bear arms, nor did it end the widening disagreement over the appropriate role of the militia." See? Our government even in its nascence was generally incapable of addressing head-on the thorniest issues.

Cornell concludes his worthwhile analysis by saying that the "individual/collective rights dichotomy model … may have outlived its usefulness" in the struggle over how to define the scope of the Second Amendment — then and now. Unfortunately for us — and certainly for any federal court judge who has the misfortune of landing one of these no-win cases — Cornell doesn’t really suggest a new "paradigm" that might solve the gun debate in this country. But can you blame him? I mean, if Madison and his iconic gang couldn’t get that job done why would anyone expect a lowly ole history professor to do so?

[usawatchman]

they closed the board,
but they have a hole in their software code...
catch you on another board..

[usawatchman]

OlGreyGhost , OT ( Off Topic)
maybe we crossed paths..

I used to live over in Williamson Co..
that was deadliest 10mi of road I ever seen
I saw more dead bodies on the side of the road (car accidents)
in the two years I live there

One day as I was leaving a parking lot
this truck, I let him go in front of me
he got to the road and stops .... and he just sits there
traffic goes by... then NO CARS (except some 300 mi away)

I respectfully honked my horn (a small tap)...let him know I was there..
he had a camper on the back of his truck, and
my not have seen me pull up behind him...

Him and his friend got out and started to confront me
his wallet in his hand, (BINGO!) had to be a cop...
in TEXAS, everyone is part of the reserve..

He gave me FOR THE CHILDREN line...
Can't you see I have a kid in the car blahblah..
this guy In my face,yelling

I was the sitting duck this time..
No change of getting the rifle out..

So I went for the knife, Dagger with one of the blades grinned off..
I had once worked for a Airline food catering service
throw knives...most of the day.. while waiting for a jet

I started yelling back are you threatening me...
Are you threatening me..? his friend grabbed him and said let go , come on lets go..
he said NO he has a knife..
his friend pointed out that the knife was still in the sheath...LETS GO.


I went to the court house to make a verbal complaint to some of his friends
about LOOSE CANNON they had..

[olgreyghost]

USAwatchman:

Sounds like the P.I.T. maneuver ala demolition derby or would that be "Death Race 2000?"

I'm retired now but I still carry under the auspices of a Texas Concealed Handgun License as there are former clients who would want to retaliate against me for my dealings with them in the past. I also have a local Sheriff's Deputy who has threatened me and my family over a matter where she was "enforcing" the law as a favor for a friend. I've given her and her friend plenty of opportunity but they haven't given a try yet. And then we have what appears to be a rising crime rate that I like to be prepared to protect my family and other innocent bystanders from (crime only rises in proportion to a rise in population and is only worse from generation to generation based on the greater number of those available to commit violent crimes).

That's why I want and exercise the right to keep and bear arms and if I want others to respect that right, then in all fairness, I must respect their right to do the same, as I always have. I trust no one (even family and friends can have a bad day or be influenced by an imbalanced blood-glucose level) and this is a policy that has helped me survive some really dangerous situations. People who tell (or order) me to trust them are the ones who I trust the least, like benevolent government officials...

[usawatchman]

OlGreyGhost , OT (off topic)
real quick before they close this board..

I will give you a trick, could save your life one day...

this is another cop has a badge , thinks it trumps evertone rights story

(remember reaction time is 2 sec. - thought / action )
I remember, driving down the road
this butt.. was driving in my blind spot (driver side)
so I sped up, he did too, so I sped up more, so did he

I punched it hard (hit low gear), and as soon as he did
I hit the breaks, he over shot me by 200 ft...

he was a sitting duck

(kids don't try this at home)
(this is getting into product - liability territory here)
(but if your life is on the line , what the hello)
If they are really GOOD driver, they won't over shoot you much
then all you have to do is

cut into them behind the just behind the back wheels
hit the gas (you may have to drop it into a lower gear)
as soon as they get sideways
(keep in contact)
you move your car between the front and back wheels
hit gas again (be careful at this point)
if the road is dry, as soon as he grabs the road
you will feel your car wanting to lift
hit the break (he has a real high probability of rolling)

[usawatchman]

OlGreyGhost , OT (off topic)

FYI, I used to work for Car rental co.
graveyard shift..

I did nothing but drive, everyday, all day.
I have to have a couple of million miles under my belt
I have put 200,000 on 7-8 of my personal cars..

Like the Battle of New Orleans
they ran through the briars where a rabbit wouldn't go..

If you had your hand on the door, you would get it ripped off

I remember we ran those cars
run run run, if we didn't they would start piling up at the airport
and getting tickets...towed

you talk about a tight pack
we be driving 10-15-20 miles hour though a gauntlet of cars
packem in, crawl out of the window,
then role the window up, through the crack in the door

late at night you would hear a ROOKIE screech, Bam..
then some guy would come out from back with a skip in his step...
looking up in the sky at the stars..

(kids don't try this at home)
I remember I used to have a trick I could do
when it was wet (rain)
I would be going 20-30 hr in the parking lot
hit the brake (lock the wheels), throw it in reverse, let off the break,
hit the gas, cut the wheel, hit the break, put it in drive
give it a little gas (slow it down)
(like the GOOD drivers save a $250,000 car from going into the wall - NASCAR)
, and I would slide it into the parking spot..

(hope I didn't leave a step out)


I bet I could back off that bridge faster than you..

I thought about NASCAR
$$
that dream is dying hard..
I still hope..

[usawatchman]

OlGreyGhost

good comeback...
may the force be with you...
and his angles watch over you..

[olgreyghost]

USAwatchman:

I just finished laughing...I should add that one doesn't need to register a vehicle intended for sole use on private property - i.e. farm truck, tractor, hunting jeep, etc., - but it must be in good working order or hidden behind a fence for here in the Republic they will prosecute under the "junk vehicle" ordinances of most cities and towns.

We have a one-lane, one-way bridge that I used to travel across alot and I would always meet folks coming the wrong way who would think I should back up since they were on the bridge first. They would flash their brights, salute me as you say, and once even hopped out of their vehicle with baseball bats in an attempt to coerce me into backing up. I would just turn on the overhead emergency lights and they would decide to leave the area. There's just something special about driving a marked police car...

[usawatchman]

FYI , also

just yesterday I was driving down the road
there were some cars parked on the side of the road (my side)
it was a long line (construction workers cars)
like a ONE LANE CAR BRIDGE
I got to the bottle neck first so I drove through
this guy in a SUV was trying to pin me in so I couldn't get out

I guess he was going to try an make me back up and let him pass first...
or
wait all day for him to move his SLOW ASSETS down the road..
(he only wanted to drive fast when he thought it would screw me over)


so I hit the gas to make it out of the bottle neck
I made it out, and pulled into my lane
and as I pulled into my lane
he turned his wheel real fast (and back) to my lane like he was going to hit me..
a real jerk
So I saluted him... he hit his brakes
so I saluted him with both hands...

(if one was good two had to be better)

he turned around and started after me,
I pulled into my driveway, he was out by the street yelling
THE CARS WERE ON YOUR SIDE OF THE STREET
YOU WERE.....Suppose..to..blahblahblah

I kept wave for him to come over and see my gun collection
he drove off before I could show him some of my best pieces...

I figured he was a cop,
who thought he badge trumped everyone else RIGHTS...
again
I refer back to the

ONE LANE CAR BRIDGE RULE

I got there first, and so I crossed...

thanks go out to Mossberg

[usawatchman]

FYI OlGreyGhost

In Houston, the city was hauling away cars
off private property

they went onto this one guy land and towed
his corvette that he was going to restore
even a junk corvette that isn't wreaked
is worth more than junk vehicles ($5,000-10,000)
it is what ? $50,000+ new


their justification was the car was not have a current up to date
registration / inspection / plates...
they took the car to a crusher...(48 hr by the law)

they had a cop there (I figure to shoot / kill / or just beat the hello out of him..)
should the guy try to exercise his rights and protect his property

this country is going down the toilet...
one day they are going to push too far...
things are going to break, and people like

jpesot at 06:18 PM : Dec 11, 2006

are going to say can't we all get along
peace, love.. and all that good stuff..

[sy2502]

Being born and raised in Europe, I can assure you that no matter how strongly you ban firearms, bad guys will always be very well armed. Now I live in the San Francisco Bay Area and I couldn't stop laughing when the city of San Francisco asked everybody to turn their firearms to the local police. Sure I can just see all the crooks and gangsters standing in line to give up their weapons.
Since Great Britain has instituted the most stringent firearm ban in Europe, violent crime has climbed to unprecedented heights. Criminals themselves admit that they approve of firearm bans because it makes their "job" less dangerous. After all, if they want to burglerize a home, they want to be the only ones with a gun and don't want to be shot back at.
Suing the gun manufacturers and sellers for gun crime is ridiculous! Do you really think gangsters buy their guns at the corner store, where they go through a 3 day background check? The guns used for crimes are obtained illegaly, not through the official channels.

[sanfelz]

In the year 2003 in the US, there were over 30,000 deaths by gun, almost 12,000 homicides by gun, none that I know of by militia.

Gun manufacturers make more guns than are legally purchased. Seems to be a disconnect between gun manufacturers and gun sellers and law and order.

[olgreyghost]

A thought on the analogy between cars and guns.

1. The right to operate a motor vehicle is not specifically enumerated within the Constitution as the right to keep and bear arms and licensing would be an infringement

2. One doesn't need a driver's license to OWN a motor vehicle

3. One doesn't need a driver's license to operate a motor vehicle on private property

4. A motor vehicle owned for the sole purpose of being operated only on private property does not have to be registered (no license plates on NASCAR vehicles)

5. If one wants to license the carry of firearms into portions of the public domain (in violation of the 2nd Amendment) then many States, including the Republic, already have this in place - it's called a "Concealed Handgun License" and they have to be honored by other States just like driver's licenses are now, even if the other States don't allow the same privileges for their own citizens.

Kind of backs everyone into a corner, don't it?

[olgreyghost]

USAwatchman:

I cannot give away what isn't mine to give. I concede San Francisco and New York City to the people who choose to live there and live the way they do because I respect their right to choose to live that way. I have a problem when they try to inflict their political theories about gun-control on the rest of the country.

The biggest whine coming out of New York City right now is that (they say) most guns being used in violent crimes in the city are being "imported" from outside the city, by New Yorkers no less. They want to punish people as far away as Georgia. I say build a fence like the federal government wants to do on the U.S./Mexico border.

Everybody wanting to enter New York should be strip-searched to make sure they are not bringing in any weapons, like in a prison. Then when no one has any weapons, violent crime will plummet, like in a prison. Some will view the wall as a sign of oppression but the government can explain it is for their own protection and life will be pleasant and peaceful, like in a prison...

[bluestardad]

We will all need any gun we can get our hands on soon if Bush and company have their ways.

[jrtoddskow2]

I/m 43 years old, have 3 kids and run a paper route out in the country between 1 and 6 am every moring, alot of crazy people do crazy things during these times especially during the holidays! I got a Conspiracy charge against me 24 yrs. ago when I was a teen hanging aroud with the wrong crowd, didn't hurt anyone, I was charged with a "Felony" now I can't possess a firearm or ever vote again in my life! I've been in no more trouble since then other than some traffic tickets, no dui's or dwi's. Until 11/21/06 at 1:30am going to pick up our newspapers I was pulled by a Deputy Sheriff of Pitt Co. NC for no reason other than my Ex-Business Partner calling him and telling him I had a pistol in my SUV,he done this becaquse I ended our partnership because he waqs just a plain CROOK. Icarried the pistol for protection during the paper route, never had to pull or use it ,now I'm facing a possible 8 yrs. behind bars! There is no right to bear arms and we do not have the right to defend ourselves in this so called "FREE" Country! Yes I made a mistake 24 yrs ago, "I'VE PAID MY DEBT TO SOCIETY". I've even called the Sheriffs Dept on my route over 12 times in the past 5 yrs. for people Drinking and driving, breaking and entering, and car accidents that also included Police Officers. Guess I'll have to wait 1-2 hrs out in the rural countryside for the cops or coroner if I get robbed!

[processor2]

Sure, Europe has strict gun control, and because of it, Europe has fallen to the likes of Hitler, Stalin, and Mussolini.

Whereas, in Amercia, we have the 2nd amendment and the right to bear arms

And we have been free ever since.

---------------------------

[creeper00]

From one tree-hugging, lizard-kissing liberal:

There is NO part of "The right of the people to keep and bear arms, shall not be abridged" which is even remotely ambiguous. Given the recent bloody origins of this country it's not surprising the states had militias in mind when they polished the Constitution with the Bill of Rights. While Congress may cite reasons for any law it chooses to make (in this case the reference to a militia) the directive, not the reason, is the law. If this law is going to be changed, it must be changed by amendment, not reinterpretation.

My husband can remember taking his rifle to school and storing it in his locker during the day so that he could go hunting after school. There were no mass killings in schools then. Perhaps we need to take a long hard look at the society we have created, rather than the inanimate objects we have filled it with.

[processor2]

Sure, Europe has strict gun control, and because of it, Europe has fallen to the likes of Hitler, Stalin, and Mussolini.

Whereas, in Amercia, we have the 2nd amendment and the right to bear arms

And we have been free ever since.

[jmagarotz]

If I may be so bold as to ad a PS to my earlier comments.
To CBS: Since you are so insistent upon the destruction of the Second Amendment, what, pray tell do you think will happen to your precious "Freedom of the Press" if Article II falls?
I've got a hint for you, It ain't gonna be pretty!

[ryindy]

"I mean, if Madison and his iconic gang couldn%u2019t get that job done why would anyone expect a lowly ole history professor to do so? " - Andrew Cohen

Nor could the public at large expect a lowly journalist / solicitor to get it right either.

I mean if elected officials can mis-interpret the 2nd Amendment right "the right of the people to keep and bear Arms," will the same ones mis-interpret a journalists right under the 1st Amendment "or abridging the freedom of speech, or of the press;".

I mention this since CBS is actually a "News Service" and not actually "published press paper".

I mean we can play with words forever, can't we ?