Fordham University history professor Saul Cornell is one of the go-to "experts" for gun control groups, thanks in large part to his position that the Second Amendment was never meant to protect an individual right to keep and bear arms. In a new piece at Time magazine, the professor gave a masterclass in how to cherry-pick history to fit his conclusion that the Supreme Court is getting the Second Amendment all wrong; citing a 19th-century carry case from Alabama as his proof that the Founding Fathers never meant to allow everyday citizens to bear arms in self-defense.
The case in question dates back to the 1840s, and involved an Alabama sheriff who was convicted of illegally carrying a pistol. As Cornell writes:
In upholding this law, the state’s highest court concluded that there was no unfettered right to carry guns. “The terms in which this provision is phrased,” the court noted, “leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals.”
Banning concealed carry, in other words, was perfectly constitutional. Moreover, the alternative option—open carry—was a practice that could only be justified when an emergency was “pressing” or when an individual was traveling far from home, especially on the frontier.
The Alabama Supreme Court's decision may tell us something about what the justices on the bench in Tuscaloosa (which was home to the state capitol until 1846) thought about the right to bear arms, but that doesn't mean that the court reached the right conclusion. In laying out his case that State v. Reid tells us all we need to know about the limits of the Second Amendment, Cornell utterly ignores other decisions from other states that reached the opposite conclusion.
In 1822, in Bliss v. Commonwealth, the Kentucky Supreme Court ruled that a law prohibiting the concealed carrying of a pocket pistol or various edged weapons ran afoul of the state’s constitutional provision, “the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.” The state argued that the law merely regulated, rather than imposed a blanket restriction upon, the right. However, the court said, “to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.”
... In 1846, in Nunn v. State, the Georgia Supreme Court overruled that state’s law prohibiting the carrying of most pistols and various edged weapons. The court said, “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.”
Cornell doesn't mention Bliss or Nunn in his Time column. Instead, he presents the Alabama decision as the rule, not the exception, when it comes to 19th-century views on the right to carry.
The actions of the Reid Court, and the general practices of Founding-era jurists, make clear that judges at the time when the Second Amendment was drafted and ratified and in subsequent decades approached the law very differently than does today’s Supreme Court. Rather than focusing on hyper-textualism, they focused on consequences, what today’s originalists disparage as “policy.”
The people themselves, acting through their legislatures, had broad latitude to address issues of public safety. Further, in close cases, where a law butted up against the boundaries of legitimate regulation, courts generally deferred to legislatures giving them the benefit of the doubt. That explains why they routinely blessed new gun regulations despite the presence of the Second Amendment and related state laws.
Keep in mind that, until the Fourteenth Amendment was ratified in 1868, the Second Amendment's protections didn't apply to the states. The Bill of Rights was originally intended as a check on the powers of the federal government. Moreover, while Cornell asserts that the Alabama Supreme Court not only upheld the ban on concealed carry but essentially limited open carry only to emergencies, the justices actually cited Alabama's then-Attorney General, who contended that the state prohibition on concealed carry didn't violate the state constitution because "Every man was still left free to carry arms openly, the only manner in which they could be used for defensive purposes."
In the mid-19th century, open carry was the norm, while concealed carry was the exception. In our own time, most gun owners prefer to carry concealed, not openly, though the vast majority of states allow for either option. It doesn't surprise me that Cornell is playing fast and loose with history to buttress his anti-gun arguments. After all, it's not the first time he's taken the same approach. But the next time he submits an op-ed to Time or any other publication, the editors would be wise to engage in a fact check before allowing his cherry-picked history to be presented as the full and complete story.
