Tuesday, June 29, 2010

Saul Cornell on McDonald

Can't disagree with Prof. Cornell. From SCOTUSBlog:
The quality of scholarship cited by Alito, much of it published in minor law reviews and much of it produced by gun rights activists with the express purpose of influencing the Court is nothing short of intellectually embarrassing. With over a thousand law reviews in existence, and many law reviews going on-line as well, the entire nature of legal scholarship now appears totally debased. Law review publication, most of it lacking any meaningful peer review or comparable quality control, has proliferated to the point where activists simply seed the law reviews with the express purpose of bolstering specious arguments. The notion that courts ought to wait for a true consensus to appear before turning to law reviews has been replaced by a notion that all publications are created equal. The notion of scholarly authority has almost no meaning any more.

Preach it, Prof. Cornell!

On the bright side:
As a practical matter, the case merely extends the Heller status quo to the states and seems unlikely to change the realities of gun regulation. While gun bans may be out, virtually any gun regulation that could survive the political process is likely to survive the wave of challenges that will follow in the wake of this decision. Interestingly, Justice Alito underscored the narrow scope of Heller’s original holding – which, he made clear, only protected guns in the home. Since most gun rights advocates are focused on the right to carry, his statement in McDonald is likely to be a serious disappointment.

What's your opinion? Please leave a comment.


  1. Sounds about right to me. I've always said and other historiansand lawyers agree--much of the 2A legal writing is pretty poor. A lot of consists of circular reasoning and really sloppy research.

  2. Much of the "Second Amendment Scholarship" is a recent fabrication within the past 20 odd years. It is based upon misquotations and misinterpretation of history.

    There is a far better historic and legal basis for saying that the Amendment is to protect me from the establishment of a Standing Army.

    The founders envisioned a Swiss style military with the professional army acting as trainers and administrators. The bulk of the defence force comes from part time soldiers: the militia.

    Adam Smith discusses the militia in "the Wealth of Nations" which was printed on the eve of the Revolution. Smith argued that a permanent military force, rather than citizen militias, was necessary to defend any advanced society. This was because an amateur force is not really capable of defending a nation.

    To be quite honest, the Militia during the War for American Independence was ineffective despite the beloved creation myth. The War for Independence was fought and won by professional armies. In fact, the French Army played a significant part in the War for American Independence.

    So much so that it contributed to the bankruptcy of the French government which led to the French revolution.

    So, the Militia and Second Amendment guarantee was pretty much an anachronism at the time it was inserted into the US constitution to placate the anti-Federalists who would
    have fought the new Constitution.

  3. "Much of the "Second Amendment Scholarship" is a recent fabrication within the past 20 odd years. It is based upon misquotations and misinterpretation of history."

    I agree. Before the last 20 years or so of this new collective rights notion, everyone understood it to be a basic fundamental individual right.