Could Bellesiles's Problems Undermine Gun Control?

Emory University recently announced that an outside panel of scholars
will examine Michael Bellesiles’s Arming America—with results to be
announced this summer. If the investigation discredits Bellesiles then
it could hurt the arguments filed by gun-control advocates in a major
Second Amendment case ( US vs Emerson) that is coming before the
Supreme Court.

If the Supreme Court hears US vs Emerson, the Justices will review
material submitted to the US Fifth Circuit Court of Appeals: law
journal articles, the prosecution’s brief, and Amicus Curiae filed by
gun-control advocates. The material in support of the gun-control
position has a number of citations to Bellesiles’s publications – such
as the 1996 article “The Origins of the Gun Culture in the United
States” which was the initial basis for Arming America. The Fifth
Circuit Court’s opinion cites several Chicago-Kent law journal
articles, including one by Michael Bellesiles, as defining the
“collective right” interpretation which supports gun control. The
Chicago-Kent articles in turn cite Bellesiles’s Arming America for
support.

In March 1999, Federal Judge Sam Cummings dismissed gun possession
charges against Timothy Emerson on the basis that the charges violated
Emerson’s Second Amendment right to own a firearm. Cummings’s ruling
was based on the Standard Model or “individual right” interpretation
of the Second Amendment. Gun control policies, however, are based on
an opposing or “collective right” interpretation -- in which there is no
right to possess a firearm except during military service in the
National Guard.

Two organizations who have filed Amicus Curiae briefs in US vs Emerson,
the Second Amendment Foundation (pro-gun rights) and the Potomack
Institute (pro-gun control) have web sites with Emerson briefs and
supporting documents. A review of the documents at
those sites show that a group of historians reacted strongly to
Cummings’s ruling.

In 1999, Northwestern historian Garry Wills released the book A
Necessary Evil. Wills argued that Standard Model advocates project a
false view of Revolutionary militias – that the militias performed badly
in battle and that most people did not have guns. In support, Wills
stated, “In one of the most important (but neglected) studies of the colonial
frontier, Michael Bellesiles went through over a thousand probate
records…”

Not quite a virginal debutante’s introduction to society – but close.
Pulitzer winner Garry Wills is known for his strong attack on the
Standard Model, published in the 1995 New York Review of Books.

In October 1999, three historians--Michael Bellesiles, Saul Cornell,
and Don Higginbotham--challenged the Standard Model in articles
published in the Constitutional Commentary law review. The
Cornell and Higginbotham articles cite Bellesiles. Bellesiles, of
course, cites himself. Around that time, the prosecution appealed
Cummings’s ruling to the US Fifth Circuit Court of Appeals. The
prosecution’s brief states: “The case law and history ignored by Emerson
are more than adequately set forth in the Government's opening brief and
the amicus briefs of the Center to Prevent Handgun Violence et al. and the
Ad Hoc Group of Law Professors and Historians, as well as by countless
legal and historical researchers. See, e.g., Michael A. Bellesiles, Suicide Pact: New
Readings of the Second Amendment….” The prosecution then goes on to
cite the articles by Cornell and Higginbotham, Will’s A Necessary Evil, and an article
by historian Carl T. Bogus, which also cites Bellesiles.

The prosecution was supported by the Amicus filed by the “Ad Hoc Group
of Law Professors and Historians” --aka the “Yassky Brief.” The 53
members of the Ad Hoc Group included Michael Bellesiles. The Yassky
Brief argues: “Of particular importance, historians specializing in the
Founding period have rejected claims made by the individual rights
theorists as anachronistic.” The brief then precedes to cite the
freshly-printed Constitutional Commentary articles by Bellesiles,
Cornell, and Higginbotham.

In February 2000, Handgun Control’s Center to Prevent Handgun Violence
and the American Bar Association sponsored a Second Amendment Symposium
at the National Press Club in Washington DC. Bellesiles, Higginbotham,
and Cornell gave talks criticizing the Standard Model and Lois
Schwoerer criticized historian Joyce Malcolm’s arguments for the
Standard Model. The announced purpose of the Symposium was to “challenge
the gun lobby's on-going campaign of misinformation about the Second
Amendment." Given that the Center filed a gun-control amicus in
Emerson, one could assume that the Symposium was directed toward any
Supreme Court Justices or clerks who might be in the neighborhood.

In April 2000, the Joyce Foundation, a gun-control advocacy group,
sponsored another Second Amendment Symposium with the Chicago-Kent Law
Review. Carl T. Bogus, in the introductory lecture, cheerfully acknowledged the
nature of the Symposium: “With generous support from the Joyce Foundation,
the Chicago-Kent Law Review sponsored this Symposium to take a fresh look
at the Second Amendment and, particularly, the collective right theory. This is not, therefore,
a balanced symposium. No effort was made to include the individual right
point of view. Full and robust public debate is not always best served
by having all viewpoints represented in every symposium. Sometimes
one point of view requires greater illumination.".

The Symposium’s presentations were published in the Chicago-Kent Law
Review. Ten out of eleven articles cite Bellesiles or Arming
America. An example from Dorf’s article: “What of Madison's assumption
that the people would have arms? The short answer is that the
assumption was inaccurate. Historian Michael Bellesiles has
discovered that fewer than seven percent of white males
in western New England and Pennsylvania owned working guns upon their
deaths. As Garry Wills effectively argues, Bellesiles's discovery
is consistent with other evidence tending to show that the notion of
founding-era militias comprising nearly all able-bodied adult white males
was never more than a myth … the historical work of scholars like
Bellesiles and Bogus substantially undermines the individual right position.”
Several presenters at the Chicago-Kent Symposium were also co-signers of
the Yassky brief.

Several of the Chicago-Kent Law Review articles were cited in the
Fifth Circuit Court of Appeals ruling as defining the “collective right”
interpretation. Among those were Michael Bellesiles’s article “The
Second Amendment in Action” which is a slightly modified version of
Chapter Seven of Arming America.

Hence, if Michael Bellesiles’s work is discredited, it may cast a cloud
over the “collective right” presentation in US vs Emerson – by raising
the question of objectivity, expertise, and credibility. The very
intensity of the Ad Hoc Group and allies could suggest that scholarly
objectivity is not the ruling passion here. When Arming America was
released in 2000, it soared in part because historians Garry Wills and
Carl T. Bogus gave it very favorable reviews in the New York Times and
the American Prospect.

By contrast, a review of briefs supporting Emerson shows no similar
group of historians engaged in such intense advocacy for the Standard
Model or making a similarly strong attack on the “collective right”
interpretation.

US vs Emerson is a major constitutional, legal, and public policy issue
which should be treated in an evenhanded way. So who decided to heavily
subsidize the gun-control argument while starving the gun-rights' side
of the issue? Bellesiles says he spent 10 years
researching Arming America. The Stanford Humanities Center's web site
indicates that he spent 1998-99 there, working full time on the"The
Origins of American Gun Culture." The other professors who created
the content of the Constitutional Commentary and Chicago-Kent articles
would have also required heavy financial support for past research. Did
any of this money come, directly or indirectly, from the US taxpayers --
e.g., via grants from the government's National Endowment for the Humanities ?

Why has the federally-subsidized historical community been so reluctant
to examine Bellesiles's work before it goes to the Supreme Court? As
noted, Bellesiles published his article on Early American gun ownership
and militias back in 1996. Arming America's description of militia
performance is not consistent with works by other historians, with US
Army studies, or with primary historical sources. So why have
thousands of associate professors been slow to upset the Ad Hoc Group's
applecart?

Within the historical community, the bulk of the research showing
problems in Bellesiles' work has been done by Clayton Cramer --who's had
to work on his own time without financial support. The William and
Mary Quarterly issue of January 2002 was a decent first attempt, but the
critics were given a small page quota.

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Illustration by Curtiss Calleo.