Charles C.W. Cooke Fisks Asner and Weinberger’s False Second Amendment ‘History’

9/11 truther Ed Asner doesn't give a damn about history

courtesy tibbits.org

Pro tip: don’t take on National Review’s pro-2A Brit, Charles C.W. Cooke, where gun rights are concerned . . . No, Salon, the U.S. Was Not ‘Founded on Gun Control’

We might start with the purely factual errors. Asner and Weinberger claim that “as written, the Second Amendment follows closely in meaning and in language previous state and national Constitutions — all of which explicitly refer to militias and not individuals.” This is wrong. The Second Amendment was ratified in 1791, which is 15 years after Vermont’s Bill of Rights, which held that “the people have a right to bear arms for the defence of themselves and the state”; 15 years after North Carolina’s Bill of Rights, which proposed that “the people have a right to bear arms, for the defence of the State”; and a year after Pennsylvania’s Declaration of Rights, which ensured that “the right of the citizens to bear arms in defence of themselves and the State shall not be questioned.” It is also eleven years after Massachusetts confirmed that “the people have a right to keep and to bear arms for the common defence” — a plain statement that, like the others quoted, contains no references to a “militia,” “explicit” or otherwise, but does mention “the people.”

Asner and Weinberger also claim that Justice Scalia’s “odd” take on the Second Amendment’s grammar not only was incorrect, but was one that “nobody’s ever heard of, then or since.” His decision, they propose, ignored “200 years of precedent, historical context, the Framers’ Intent.” The ignorance or dishonesty that it must have taken to write these two sentences is, I must confess, beyond my ken. As Eugene Volokh has pointed out at length, the construction used in the Second Amendment was not peculiar for the era, but was in fact “commonplace.”

Not that any of Cooke’s cogent, thorough fisking of (9/11 truther) Asner and Weinberger alternative history will matter much. The two Eds, convinced they’re lonely voices of clarity in a wilderness of lies, half truths and far right obfuscation, have waded deep into the Bellesilesian fever swamps where facts don’t much matter.

None of the aforementioned matters much, of course, because Asner and Weinberger are not really investigating history, but trying to rewrite it. Theirs is a piece designed to convince the already convinced that almost everyone has fallen for a hoax. It’s hard work reversing much-beloved constitutional provisions, especially when they are built upon ideals that go back centuries. It’s much easier to pretend that “people” doesn’t mean “people,” and “right” doesn’t mean “right,” and that Michael Bellesiles was right after all. The Truther Singularity is perhaps closer than I had thought.

It’s worth your time to read the full article here.

comments

  1. avatar Mark N. says:

    A friend of mine sent this to me. It is worth the read. It is a great take down of a poorly written and poorly (if at all) researched anti-gun screed. It is really too bad that Salon’s readership will lap up Assner’s assertions as if they flowed forth untainted from the fountain of truth.

    1. avatar Geoff PR says:

      That is going to be their tactic for the foreseeable future – they will claim the US never had a ‘wild west gun culture’, the founders never intended common citizens to own guns, etc, etc.

      Just read the ‘Heller’ and ‘McDonald’ dissents –

      “The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the “militia” preamble and exact phrase “to keep and bear arms” demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts’ later “collective-right” reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons…. I could not possibly conclude that the Framers made such a choice.””

      https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller#Dissenting_opinions

      And the McDonald dissent, and to me, this is the blueprint for how they intend to attack the 2A in the future –

      “Justice Breyer wrote, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, ‘fundamental.'”[25]”

      https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago#Dissents

      Damn chilling Statist stuff, right *there*. That’s how they will fuck us in the future, when they eventually regain control of SCOTUS.

      That’s what all these whack-job articles are doing, telling a lie often enough so it becomes the truth they want.

      Expect to see a continuous flood of more of them in the future.

      We have been warned…

      1. avatar FedUp says:

        they will claim the US never had a ‘wild west gun culture’,

        If they claim that, they’d be correct.
        The Wild West, gunfights etc were a figment of Hollywood’s imagination.

        What they’ve been doing,every time a relaxation of gun controls is proposed, is to claim that relaxing gun control will take us back to wild west blood in the streets, ignoring the fact that it was never like that in the first place.

        1. avatar Geoff PR says:

          OK, I wasn’t clear. (as I sometimes, scratch that, make that many times, are. Er, aren’t.)

          They will claim that there is no longstanding national ‘gun culture’ that goes back to the founding of the country, that it was completely fabricated out of thin air by the gun companies to sell guns.

          There have been a *number* of articles like that in the past few years. They are attempting to build a fabricated scholarly ‘history’ to match the dissents in Heller and McDonald, and use that to eventually overturn Heller and McDonald…

      2. avatar Ing says:

        “….I could not possibly conclude that the Framers made such a choice … to limit the tools available to elected officials…” Never mind that that’s exactly what the Bill of Rights, and indeed most of the Constitution, exists to do.

        I could not possibly conclude that this fool — a Supreme Court justice, no less — has ever read the Constitution, much less understood any of it.

        1. avatar uncommon_sense says:

          Ing,

          “I could not possibly conclude that this fool — a Supreme Court justice, no less — has ever read the Constitution, much less understood any of it.”

          All of the U.S. Supreme Court Justices have read the U.S. Constitution and understand it quite well. They just don’t like it so they invoke verbal gymnastics and outright lies to advance their agenda.

      3. avatar Erik says:

        “There has been, and is, no consensus that the right is, or was, ‘fundamental.’”

        Best line ever and perfect to use against liberals. There is no fundamental right to become I toxicated. No fundamental right to abortion, nor a right to healthcare. All liberal pablum. Oh and there is no fundamental right to College either. This can be fun.

        They are worthless sniveling cucks and they know it.

        1. avatar patrulje68 says:

          You don’t expect to see a “argumentum ad populum” fallacy (even if given in the negative) in something written by a supreme court justice, someone need to go back to debate class.

        2. avatar Big Bill says:

          “There has been, and is, no consensus that the right is, or was, ‘fundamental.”

          There’s no such consensus that it isn’t, either.
          However, I would think that the 2A itself, by saying that the right to keep and bear belongs to the people (as opposed to the government, and by extension, to the militia) says just that.

      4. avatar Mark says:

        If the word people means state in the 2nd why does the 10th say “the States respectively, or to the people.” It would seem redundant

  2. avatar Leighton Cavendish says:

    So…all those other rights in that same document…they are NOT individual rights , either?
    And why is the 2nd the ONLY one to contain the “shall not be infringed” statement?
    Hmmm…something to ponder…right?

    1. avatar rc says:

      Now that you mention it…they’re really starting in hard on the first amendment now, with their ‘hate speech’ rubbish. It seems they see the both the 1st and 2nd amendments (the truth and self-defense) as their greatest threats.

      1. avatar Kendahl says:

        They believe the Bill of Rights should contain only one sentence: You have the right to shut up and do as you are told. It’s typical leftist thought. The group is everything and individuals are nothing.

        1. avatar uncommon_sense says:

          Kendahl,

          “The group ruling class is everything and individuals working class are nothing.”

          There, fixed that for you.

  3. avatar little horn says:

    i couldnt make it thought this article when i first saw it. they just blatantly ignore the first part of the 2A which shows their unyielding bias and detachment from reality.

  4. avatar GS650G says:

    I know a few people who believe the left’s interpretation of the USC. They are at the tender mercies of others

  5. avatar Edward Zampella, MD says:

    Bullshit , plain and simpleedws

  6. avatar Curtis in IL says:

    It would be laughable if it weren’t so pathetic, that the left turns to a couple of aging TV personalities for interpretation of our Constitution.

  7. avatar Alrik Einsbreker says:

    My biggest gripe about anti-liberty types like Asner is that karma hasn’t caught up to the likes of him quickly enough.

  8. avatar former water walker says:

    They get their screed from a senile old fart like Asner?!? Might as well trot out slow Joe Biden-at least he sez “get a shotgun”😄😄😄😄

  9. avatar MyName says:

    It amazes me how often people twist themselves in knots trying to explain away the clear meaning of the 2nd amendment. All the BS about the militia clause and the meaning of regulated and on and on cannot erase that very clear phrase “shall not be infringed.”

    Note that it does not say, shall not be eliminated, or, shall not be significantly reduced, or shall not be overwhelmed, it says *Shall* *Not* *Be* *Infringed*. Infringed is a really important word here. Infringed, as evidenced by the word ‘fringe’ imbedded within, means that it is not to be tampered with in any way whatsoever. No encroachment, no chipping away, no meddling, no fiddling around the *fringes* of the right.

    In America today, we have already given up ground relative to infringement. The fringes of the right to keep and bear arms are already eroded. The current fight is to stop further erosion and, perhaps, regain some lost ground. That said, anyone who wants to hang their hat on the notion that the 2nd amendment means anything other than, ‘The people (that is each and every individual) have the *right* to own and carry *anything* that is a weapon, are, quite frankly, talking out of their ass,

    1. avatar MyName says:

      Oops, that should be a period at the end there.

  10. avatar Brandan says:

    I love Charles C.W. Cooke…and I love the irony that the (arguably) most ardent and eloquent defender of the 2nd Amendment in the press is a Brit.

    I find it curious that for years the gun control argument was based in the notion of progress. The argument when something like this, “sure the Constitution grants the right to keep and bear arms, and sure that at that time it was needed…but we’ve progressed beyond that now! We have a modern police force and a modern military!”

    But strangely since Heller and MacDonald the left is appealing to (a false) tradition. Its a curious that liberals appealing to the authority of the past. We’ve seen this previously with “explainer” pieces which tout the supposed effectiveness of gun control laws in places like New York City (which were purposefully crafted to disarm Italians and blacks) but this is the first time I’ve seen gun control proponents go full-retard, full Orwellian and try to claim that the founders were antigun.

    They’re running out of arguments which are not obviously based in statism. Since my awakening on this issue I’ve come to the realization that the left will have to eventually admit that they feel that the individual citizen does not have a right to self-preservation. To not come out and say as such is to obscure the result of their policy proposals.

    1. avatar Jonathan-Houston says:

      The 2A allegedly being outdated and made moot by modern police and military forces is the most interesting angle of the Volokh paper referenced in the article. The professor divides the second amendment into the operative clause, “the right of the people to keep and bear arms shall not be infringed”, and the justification clause, “A well regulated Militia, being necessary to the security of a free State.” Of the operative clause, he characterizes it as both overinclusive and underinclusive of the justification clause.

      Basically, it is underinclusive because the right is the right and it is permanent. The justification clause helps explain the righteousness of the right, but it is not a precondition of the right. The justification can become obsolete, but the right endures.

      Similarly, the justification clause is overinclusive because it defines the “right of the people”, which includes more than those individuals who would comprise the militia proper.

      Either way, the right is the right. While it may get some boost and clarification from the militia justification clause, perhaps also generating some support among would-be ratifiers, the right doesn’t owe its very existence to that clause.

  11. avatar TX_Lawyer says:

    Over at the redstate . com article linked in Charles Cooke’s article, I finally found a gun control law I like. “Virginia declared that all free men were required to possess a musket, four pounds of lead and one pound of powder. If a free man was not financially able to afford a weapon, the county had to provide one.” It just needs updating.

  12. avatar TX_Lawyer says:

    Over at the redstate . com article linked in Charles Cooke’s article, I finally found a gun control law I like. “Virginia declared that all free men were required to possess a musket, four pounds of lead and one pound of powder. If a free man was not financially able to afford a weapon, the county had to provide one.” It just needs updating.

    1. avatar Aaron says:

      A shame Virginia went full Tard blue.

      1. avatar TX_Lawyer says:

        They’re not full tard blue. If they pull the right name from the bowl, the Republicans will still have a majority in their House. Seriously: https://www.nbcnews.com/politics/politics-news/tied-virginia-house-race-be-decided-drawing-name-out-bowl-n831856

        1. avatar uncommon_sense says:

          You have got to be kidding me: the Virginia election board is going to pull a name out of a bowl because of a tie vote?

          I am thinking that they should run the election again.

        2. avatar TX_Lawyer says:

          “You have got to be kidding me.” That’s why I included the link. It is literally unbelievable when the source is just some anonymous guy on the internet.

        3. avatar uncommon_sense says:

          TX_Lawyer,

          I clicked on your link before typing my comment. I am simply exasperated at the idea of deciding an election by pulling a name out of a bowl.

        4. avatar TX_Lawyer says:

          I figured you read the article because I heard the story on the news, and either I didn’t hear or they didn’t say the part about who was drawing the name. My response to your statement was agreement that the situation was so unbelievable that after reading about it from a news source not likely to get that wrong one would still have trouble believing it.

  13. avatar Jonathan-Houston says:

    “’as written, the Second Amendment follows closely in meaning and in language previous state and national Constitutions — all of which explicitly refer to militias and not individuals.’ This is wrong.”
    Uh….no it isn’t wrong. Cooke claims that these plain statements from these constitutions don’t contain references to militias. Well, Cooke’s is a LIAR, because he’s the one selecting the statements and he selected statements that don’t refer to militias. The constitutions in question do, however, in other sections that he FAILED to quote. Curious, that.

    Vermont’s constitution mentions the militia in three places, including section 59 titled “Militia.” The title was kinda sorta a giveaway. “The inhabitants of this State shall be trained and armed for its defense, under such regulations, restrictions, and exceptions, as Congress, agreeably to the Constitution of the United States, and the Legislature of this State, shall direct.” Sounds like gun control was baked in from the start, Lyin’ Cooke.

    From Article 9: “That every member of society hath a right to be protected in the enjoyment of life, liberty, and property, and therefore is bound to contribute the member’s proportion towards the expence of that protection, and yield personal service, when necessary.” Personal service in…..what? The militia, duh.
    North Carolina’s original constitution mentions the militia in seven place, Lyin’ Cooke, including where it grants the governor the authority to “embody the militia for the public safety.” Even the section he quoted, emphasized the people’s “right to bear arms, for the defense of the State”, and not an individual right for an individual’s own purposes.

    On to Pennsylvania, where Lyin’ Cooke is at it again, as that document explicitly mentions the militia five times. He’s correct that Article IX, section XXI reads “That the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned.” Fair enough. However, Article VI, Section II, reads “The freemen of this commonwealth shall be armed and disciplined for its defence.” So, yes, the people may arm for their own defense, but there is also an obligation to be armed (unless a conscientious objector) for the defense of the state AND disciplined for its defense. Disciplined means trained for education and proficiency, so you’re not just some jack wagon running around with a musket presenting a danger to yourself and others, while contributing nothing to the defense of the state. Sounds like more gun control to me, right from the start, Lyin’ Cooke.

    Explicit colonial anti-gun laws date back at least to 1619 in Virginia, where it was illegal to provide Indians with guns. Other colonies marked slaves, indentured servants, hobos, and Catholics as prohibited possessors. Selling/giving/providing them with guns was a crime, possible a capital offense! Boston made it illegal to fire any “gun or pistol” in the city limits back in 1713. Some gun control laws were actually positive—compelling people to tool up—but these are still gun control laws. It’s still the government mandating gun-related behavior. You wouldn’t look kindly on a law mandating a defendant speak to the police as being pro-free speech, would you? Whether mandating or infringing, it’s still controlling.

    It’s amazing the Bill of Rights was even accepted as a guarantee of anything in exchange for ratification fo the constitution. Just a few years prior to ratification, these same Framers/Dealmakers offering the 2A were denying firearms to people who refused to swear a loyalty oath to support the revolution! I guess the RKBA is one of those conditional natural rights, or so practiced the Founders. Sounds about right: everyone’s for something, until it’s their ox being gored.

    Overall, Asner and Weinberger make an argument that falls short. The issue is the federal 2A, its meanings, and its incorporation on the states today. Traveling through that—the only relevant—channel, the 2A confirms an individual right to keep and bear arms. It’s reinforced by the value of militia service, but is nonetheless distinct from it. That there were various racist, classist, or irreligious-based anti-gun laws in colonial times, provides no modern justification for preserving them today and denying people their individual right to keep and bear arms. Lyin’ Cooke just went overboard in his zeal to fisk these two, who themselves had gone overboard in their zeal to disparage firearms freedom. Goes to show that the first thing a man will do in defense of his beliefs is lie.

    1. avatar TX_Lawyer says:

      The claim isn’t that the constitutions don’t make a reference to militias. The claim is that the provisions (in some of the constitutions) protecting the right to bear arms don’t make a reference to militias.

  14. avatar Docduracoat says:

    Jonathan-Houston,
    That was an extremely interesting comment!
    Your well reasoned and researched arguments would be far more compelling if you left out personal insults

  15. avatar the phantom says:

    the fed(dot)gov’s original power seemed limited to ensuring that the Constitution was observed;
    all other powers resided @ the county or state level….more specifically @ the county level with the sheriff having the most power….as much as or more than the PotUS !
    and…the states could, effectively, make any law they liked as long as it didn’t contradict the Constitution….they could even make law(s) mandating that every house-hold had a working artillery piece if they felt like it!

  16. avatar Joe R. says:

    The Bill of Rights closely follows Jefferson’s preceeding “Virginia’s Bill of Rights”. https://www.saylor.org/site/wp-content/uploads/2011/01/Virginia-Declaration-of-Rights.pdf

    It was what you get when you do shit by committee; but I think it’s very telling what part of Jefferson’s version (regarding a/the “militia”) lived to tell. Albeit preamble. IT is the ‘add-on’ language to (the already explained and reason for the right) “the right of the people to keep and bear arms shall not be infringed”.

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