The Maloney Library’s Behind the Book series launched with a dynamic discussion between two Fordham professors who are at the forefront of America’s hot-button Second Amendment debate.
Second Amendment scholars Nicholas Johnson and Saul Cornell outlined the constitutional rationale for their opposing views on the right to bear arms, while also illuminating how their book ideas transformed into published works, during the event held on November 16 at Fordham Law School.
The Supreme Court’s 2007 ruling in the matter of District of Columbia v. Heller marked the first time the nation’s highest court protected an individual’s right to possess a firearm for lawful purposes. In recent years, mass shootings in Orlando, Newtown (Connecticut), Aurora (Colorado), and San Bernardino (California) have sparked calls for gun reform measures, to no avail. The proliferation of mass shootings in America resulted in President Obama signing an executive order for gun control measures earlier this year, a move Johnson criticized at the time as a non-responsive measure that would not achieve its stated objective of preventing gun-related deaths.
In their opening remarks, Johnson and Cornell highlighted how their long-running Second Amendment disagreement can be traced back to the Constitution—and the opposing side’s misinterpretation of the 18th century text.
The U.S. Constitution has jurisdictional limits on federal power, as understood in the originalist, 18th-century sense, that infuses the document with a sense of individual rights, said Johnson, the author of Negroes and the Gun: The Black Tradition of Arms (Prometheus Books). The Constitution’s limited enumerated powers do not provide for federal regulation of firearms, he added.
Further, Johnson lamented historians, such as Cornell, who had “implicitly injected 20th century norms about federal power into its assessment of individual rights” into their arguments in such cases as Heller. Cornell co-authored an amicus brief in Heller that opposed the view that the Second Amendment provided an individual the right to bear arms, outside of a state-regulated militia.
“I don’t think the Second Amendment makes much difference in terms of firearms policy,” Johnson said, explaining that states were responsible for stringent restraints, and 44 states have right-to-bear-arms provisions.
Cornell, the author of A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control (Oxford University Press), responded that Johnson and other gun rights scholars do not fully understand the meaning of rights in the 18th-century context. Cornell noted that the framers carved out a right not to bear arms and challenged Johnson’s statement that rights are automatically claims against government.
“We have a very individualistic conception of rights because that’s the world we live in,” said Cornell, the Paul and Diane Guenther Chair in American History for Fordham University. “That’s not the world the founders came from.”
“The big problem we have in this debate is that most historians and most lawyers are not well-schooled in 18th-century modes of legal analysis and thought,” added Cornell, who told the audience he joined the scholarly gun debate to correct the rampant historical inaccuracies he observed in gun policy.
Like Cornell’s work, Johnson’s book grew out of a desire to correct public misconceptions on guns—namely, to illustrate the rarely told story of African-Americans’ proud 150-year history of firearms use to combat the terror they faced in America. His next book project will focus on how the black community went from embracing the importance of individual arms for private self-defense to joining with gun control advocates, starting in the 1970s.
The scholars closed with thoughts on how to curb America’s gun death epidemic. Annually, America has 33,000 firearm-related deaths, according to the Center for Disease Control and Prevention. That death total dwarfs other advanced democracies.
There is no magic elixir for the problem, Johnson said. Between 300-350 million guns exist in America. Legislation to recall them would produce unintended consequences.
“What happens the next day is something we should worry about,” Johnson said, stating the problem of illegal guns is one that would only multiply should legislators take action against the Second Amendment.
Cornell decried the suggestion there would be mass gun confiscation, noting government health agencies aren’t even allowed to study gun-related deaths. Gun rights advocates’ objections to universal background checks and calls for more guns in the public space do not make citizens more safe, he added.
“It’s hard to explain to people in the rest of the world what’s going on with our regulatory regime with guns,” Cornell said. “It doesn’t seem to make any sense, unless the goal is to sell as many guns as possible to the largest amount of people, in which case we’re doing a bang-up job.”
Eric Sundrup, S.J., associate editor and director for audience engagement at America magazine, moderated the event.
The “Behind the Book,” sponsored by Fordham Law School’s Maloney Library, serves as a bridge between the Fordham University academic community and Fordham Law School, fosters dialogue between people with different ideas, and provides background on the writing and publishing process.