“Trust me, I’m a Historian” — Part 1


My brother just gave me the t-shirt in the attached photo, and it reminded me that one of the goals of my blog is to explore "Why history? and perhaps more specifically "Why legal history?"

I want to start broadly and simply, with the first question. . . . then I will proceed to get more "granular."

So, to begin, history--its research and its writing and the reading of it--is of fundamental importance, more and more, because the discipline requires its practitioners to footnote their work.

A book or an article by a historian is generally trustworthy, or at least highly worthy of respect and consideration, because in its footnotes (in articles) and endnotes (in books) the author cites the evidence relied upon for the statements made in the writing.

That is not to say that footnoting makes a text ipso facto reliable; but it is a huge step in that direction, the mere act of providing the author's sources.

The point for the moment is: the reasonably literate or general reader can (if he or she wishes) check and test the assertions, the claims, the arguments made in the historical book or article by referring to the foot/endnotes . . . in stark comparison to the almost always unverifiable "texts" or "messages" contained in so very many internet sites, blogs, and postings and in the oral statements of angry cable-channel pundits and radio personalities that cannot.


Today’s Mass Shooting in the Pittsburgh Synagogue, the Second Amendment, and Ted Cruz



Today’s Mass Shooting in the Pittsburgh Synagogue,
the Second Amendment, and Ted Cruz

October 27, 2018

     The sad news of another mass shooting, this one in a synagogue in Pittsburgh, impels this pop quiz for Ted Cruz:

A Quiz for Ted Cruz About the Second Amendment
by Josiah M. Daniel, III
Dear Senator Cruz:
     Who said this?:
“Like most rights, the Second Amendment right is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[1]
     Answer: No, not Barack Obama, or Hillary Clinton, or Nancy Pelosi. It was your personal hero, the late Justice Antonin Scalia, whom you have called “a passionate champion of th[e] humbler view of the judicial role,” that is, the view that “the Constitution has a fixed meaning and a judge’s task is limited—to discover what that meaning is, not to make it up.”[2] As you have acknowledged, Justice Scalia “authored some of the most important decisions ever, including District of Columbia v. Heller, which recognized our fundamental right under the Second Amendment to keep and bear arms.”[3]
     The above quotation—which makes clear that the right to a gun is not absolute—is directly from the that same Heller decision—authored by Justice Scalia before his death in 2016.
     So why do you continually and misleadingly speak of the Second Amendment as if it were an absolute right? To the NRA convention in Houston this past May 4, you proclaimed “the Supreme Court recognized in District of Columbia vs. Heller that there is an individual right to keep and bear arms protected by the Second Amendment,”[4] but you never mentioned that, in the same decision, the Justice Scalia validated reasonable restrictions and conditions that states may properly place on guns and their owners. Instead you continue to mouth such meaningless aphorisms as “when guns are outlawed, only outlaws will have guns,” and your NRA speech actually belittled gun safety measures as merely “fiddling with the lengths of barrels, capacities of magazines, open and concealed carry [that] inch toward . . . the practical elimination of the Second Amendment.” You added that such efforts “hav[e] failed to gut the Second Amendment in Congress”[5]; but of course congressional legislation cannot “gut” or supersede the Constitution; rather, Congress and the States may enact reasonable limits on gun ownership and use, according to Justice Scalia.
     In fact, in the Heller case, Justice Scalia expounded on some reasonable gun restrictions: “For example, concealed weapons prohibitions have been upheld under the [Second] Amendment [and there is no] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[6]
     Are you unaware of or are you ignoring the history of restrictions on guns in this country and, more specifically, in our state. After World War I, gun manufacturers freely sold the Thompson submachine gun the public, and gangsters and criminals eagerly bought it and used it in a nationwide crime wave. The federal government was slow to act, so states took it into their own hands to outlaw Tommy guns and other gangster weapons such as sawed-off shotguns, automatic pistols, and silencers.
     Our Texan ancestors, pertinently, did not sit on their hands. In the Act of Oct. 25, 1933,[7] the legislators of Texas enacted a prohibition of all automatic weapons, joining many other states. The next year, the federal government finally passed a criminal statute, the National Firearms Act of 1934, that required registration plus payment of a $200 tax (about $3,600 in current dollars) as the conditions for ownership of machine guns and sawed-off shotguns; and in 1939 the U.S. Supreme Court upheld the Act's constitutionality in a 1939 case.[8]
     So Texas—which in 1933 totally prohibited, and did not simply condition ownership of, automatic weapons—went even further than the federal government. This is history that informs the current considerations and discussions of what can and should be done. Our longstanding Texas statutes prohibit possession of, among other things:
(A)  an explosive weapon [defined as “any explosive or incendiary bomb, grenade, rocket, or mine”];
(B)  a machine gun [defined as “any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger”];
(C)  a short-barrel firearm [defined to include “a shotgun with a barrel length of less than 18 inches”]; or
(D)  a firearm silencer.
     The elected legislators of our Texan grandparents and great grandparents enacted a prohibition on the ownership of machine guns to solve a large public problems—gangsters with Tommy guns killing innocent people—and this history should shame those who today, such as yourself, who deny the constitutionality of even reasonable prohibitions on military-type guns and sales of such guns to those persons who have a high likelihood of causing mass casualties with them (such as the insane and minors) and imposing reasonable conditions, such as background checks and waiting periods, for all others who desire to buy a gun at a gun store or at a gun show, along with enhanced prohibitions on guns in vulnerable places such as schools and public buildings.
     Let me pose a few more questions to you, Senator:
  • On March 1, 2018, the U.S. District Court for the Eastern District of Texas issued its order that the U.S. Marshals shall "[a]dopt procedures excluding the carrying of weapons by any and all persons other than" Marshals and their deputies and other court security personnel in the federal courthouses of the district (which covers East Texas from Beaumont to Sherman). Do you think this particular prohibition on guns either violates the Second Amendment or is a bad policy generally?
  • Do you think it to violate the Second Amendment or to be a bad idea for states such as Texas and local governments such as Dallas and Austin to prohibit the celebratory shooting of firearms within city limits?
  • Do you think the prohibition on ownership of the .50 caliber machine gun violates the Second Amendment or is a bad policy generally?
I anticipate your answers to each question to be "No." So the right to a gun is not absolute, is it?
    Total gun deaths in the United States today average around 37,000 a year; two-thirds are suicides and approximately are 12,000 homicides by gun. Mass shootings—defined as resulting in four or more people wounded or dead—now occur in the USA, on average, once or more per day. The 37,000 gun deaths is about equal to annual vehicular deaths. Guns, particularly those capable of rapid fire of many rounds without reloading, have caused a very large public health problem for Texans and all Americans. But you have done virtually nothing about it. You joined Senator Chuck Grassley in sponsoring a bill that says it is to improve background checks but in fact that bill would do so in only the most minor ways. And most recently, on August 21, you introduced what you call your “School Safety Amendment” to a pending appropriations bill, asserting that it will “empower local officials with resources to harden schools [and] keep students safe.”[9] Specifically your amendment provide federal funds for school districts to pay for “infrastructure or technologies” that among other things will “[c]ontrol access to school premises or facilities, through the use of metal detectors” and “[c]over and conceal students within the school during crisis situations.” These unfortunately are necessary band aids for the public health crisis that guns are more and more causing. But you will not hear of any real cures: reasonable limits on guns and their owners.
     Heller makes clear that what the Second Amendment does is to confer an individual right to keep and bear arms for the purpose of protection of the home. “Of course,” said Justice Scalia, “the right was not unlimited,” and it does not “protect the right of citizens to carry arms for any sort of confrontation.”[10] Like the reasonable regulation of automobiles, including the requirement of carrying liability insurance, the legislators of the Texan people should follow the history of our Texan ancestors and should enact—the sooner the better—some common-sense “prohibit[ions]” and “conditions and qualifications” (again I'm directly quoting Scalia) on guns.
     The only bona fide question for public discussion, I submit, is where to draw the lines. Is a prohibition on sales to mentally unstable persons an exercise of good common sense? Should there be a waiting period before a firearm sale is made so that the buyer's background can be checked? Do hunters need military assault rifles and magazines of fifty rounds to kill deer and other game or should such weapons be restricted? 
     I own several sporting firearms that I use for hunting game. As a gun owner and a retired Texan concerned about the safety of my grandkids, I answer "YES" to the questions of the preceding paragraph. If those restrictions were enacted, they would not violate the Second Amendment as interpreted by Justice Scalia. And, really, in all honesty, you too must agree, Senator Cruz.



[1] District of Columbia v. Heller, 554 U.S. 570 (2008).
[2] Ted Cruz, The Scalia Seat: Let the People Speak, Wall Street Journal, May 6, 2016, available at https://www.cruz.senate.gov/?p=press_release&id=2606.
[3] Feb. 16, 2016, statement of Cruz upon the death of the Justice…https://www.businessinsider.com/ted-cruz-antonin-scalia-death-dead-2016-2
[4] Ted Cruz, Ted Cruz: Freedom only exists if citizens have the means to defend it, Dallas Morning News, May 3, 2018, available athttps://www.cruz.senate.gov/?p=press_release&id=3783.
[5] Ibid.
[6] Heller at 55-56.
[7] 1933 Tex. Gen. & Spec. Laws 219.
[8] U.S. v. Miller, 307 U. S. 174 (1939).
[9] Bill to amend H. R. 6157.
[10] Heller at 22.