Smackdown Friday: Bout #3

In our Feature Bout, we have a two heavyweights competing in a grudge match battle royale!

In this corner: Kevin Baker of The Smallest Minority Blog!

In the other corner: Saul Cornell, “Associate Professor of History and Director of the Second Amendment Research Center at the John Glenn Institute at Ohio State University”

Baker has the truth of the Second Amendment behind him. Now let’s take a look at who is backing up Cornell.

Holy Smokes! Its the Joyce Foundation! They’re the largest anti-gun group in the Great Lakes Region!

And the bell rings and the match begins!

Cornell comes out of the chute with a roundhouse designed to connect to as many people as possible,

Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution.

But it is too wide sweeping to touch a hair on Baker!

I beg your pardon? I refer you, once again, to the Report of the Subcommittee linked above, and how about this page from UCLA law professor Eugene Volokh? Or the 5th Circuit Court of Appeals decision in U.S. v. Emerson? There are REAMS of scholarship showing that the “bearing arms” language in the Second Amendment did not restrict “the right of the People to Keep and Bear Arms” to milita service only, else Laurence Tribe would not have reached the conclusion he did.

Blammmo! Cornell’s head was knocked clean off! I doubt he’ll be able to recover from that one!

But wait! Something that looks like a vine is extending from his neck and, and, and it seems to be searching out the head!

It has found it! And the vine is drawing the head back to the body! That is some strange mojo the Joyce Foudnation has go going on!

Cornell winds up…Uh-Oh! This one looks personal!

I have never denied the existence of an individual rights tradition, but I think the evidence strongly suggests that it was weak at the Founding, got stronger over the 19th century, but never supplanted the two alternative models– the collective rights view, and what I call the civic rights view. Of course, since I am not an originalist none of this really matters. Moreover, with 240 million guns in America and without an individual right written into the 2nd Amendment why all the fuss. I believe the issue is very interesting, but at the end of the day it really hardly matters in terms of the politics and public policy debate. Guns are part of the fabric of American culture and are not going away so the question is can we take a few common sense steps to reduce gun violence or not. The slippery slope arguments have it backwards. What we have is an upward struggle to achieve modest regulations.

Cornell is smiling and trying to get the crowd behind him by pumping his arms and I can’t figure out why? Baker took a step back, but Cornell still missed him again. If this goes to the point cards, Baker has this bout well in hand.

Cornell had better look out. Baker seems to be glowing from some type of light? What the hell? OK, this announcer has never seen anything like this, I’m pretty sure I’ll be diving under the table soon.

I think that Cornell has finally noticed the light gathering around Baker and it looks as if he has just wet himself!

That’s it! Under the table.

OK folks, I’m under the table and I’m……

I’m glad that you admit up front that you are not an originalist. It is obvious from your writing, but stating it explicitly is certainly helpful. For those unfamiliar with the term, an “originalist” is one who believes that the Constitution is not a “living document,” and that interpretation of it should be based on the original understanding of the text as it was proposed and ratified. Justice Antonin Scalia is an originalist, for instance. Therefore if the Constitution is found to be outdated in any of its parts, it should be altered by amendment, rather than by mere legislation or judicial interpretation. In other words, even if the legislature should pass a law that appears to be a good idea, but is in violation of the Constitution as originally understood by those who ratified it, it should be the duty of the Judiciary to strike such law down as unconstitutional until such time as the Constitution has been amended to correct the error. Further, the power of the Judiciary is restricted to striking down unconstitutional law, and not creating law. That power is left to the legislative and executive branches.

What the hell was that!?!

I’m crawling out from under the table now. The light seems to be gone. I’m going to look up into the ring.

Well butter me up and call me Lucy! The only man in the ring is Baker! Where Cornell was standing is a smoking little glob of…something?

It was the Light of Truth! Folks, this is a day that the announcer will always remeber!

Kevin Baker has successfully used a WHD! A Weapon of Hoplophobe Destruction, it only hurts those that are afraid of firearms! While this isn’t the first use of a WHD in history. It was, in the mind of this announcer, still magnificent.

That’s it from Smackdown Friday! We’ll see you soon, folks