Two academics argue support for gun rights is misguided because it’s built on the foundation of American slavery in a piece for The Atlantic published Wednesday.
“Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations,” Saul Cornell and Eric Ruben open in the article. “But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.”
In its landmark Second Amendment decision, D.C. v. Heller, the Supreme Court relied extensively on a series of 19th century state court decisions that found the Second Amendment protects a personal right to carry firearms.
For example, in an 1846 case Georgia’s ban on carrying pistols was struck down by the state supreme court, because the court ruled it violated the Second Amendment. But now, Cornell and Ruben (the former a history professor and the latter a fellow at New York University Law School) say those legal precedents should be ignored, simply because they primarily come from the American South.
“The supportive precedent they rely on comes from the antebellum South and represented less a national consensus than a regional exception rooted in the unique culture of slavery and honor,” they wrote. And while “Southern courts [proclaimed] a robust right to open carry, no similar record of court cases exists for the pre-Civil War North.”
But as even the authors admit, the North did not have a series of rulings disagreeing with the Southern precedents and affirming the state’s power to ban guns. Rather, no court cases existed in the first place, and Cornell and Ruben are simply assuming, without justification, that these imaginary court cases would have gone a different way.
The ways in which Cornell and Ruben show unfair bias are numerous.
They describe the South’s approach to gun rights as a unique quirk, even though the South was fully half the country. And the North’s interpretation of gun rights, if it was even different at all, was no less “regional” than the South’s.
They lambast the Supreme Court for relying on “sympathetic [court] precedent,” without producing any early court cases that agree with their personal interpretation, citing instead an array of editorials. And they ignore strong precedents supporting gun rights prior to the 1800s, such as the 1689 English Bill of Rights, which affirmed the right of all Protestant English subjects to carry weapons for their personal defense.
Cornell and Ruben often engage in little more than ad hominem attacks.
“The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846,” they write. “As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor.”
What do Lumpkin’s views on slavery or honor have to do with his legal opinion on the Second Amendment? The authors don’t say.
If accepted as valid, Cornell and Ruben’s attack on Lumpkin could be extended virtually without limit. For example, the critical Supreme Court decision that established the Court’s power to review the constitutionality of laws was authored by Chief Justice John Marshall, who was himself a slaveowner.
And then, of course, there is the critical role slaveholders like James Madison, Thomas Jefferson, and George Mason played in the creation of the Constitution and Bill of Rights themselves.
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