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To: H-OIEAHC <H-OIEAHC@H-NET.MSU.EDU> Reply-to: vze2t297@verizon.net X-MIME-Autoconverted: from 8bit to quoted-printable by mx.wmich.edu id h0UC7vCW024809 X-Accept-Language: en-us, en Delivered-to: H-OIEAHC@H-NET.MSU.EDU User-Agent: Mozilla/5.0 (Windows; U; Win98; en-US; rv:1.0.2) Gecko/20021120 Netscape/7.01 X-Authentication-Info: Submitted using SMTP AUTH at out003.verizon.net from [68.162.77.188] at Thu, 30 Jan 2003 06:07:27 -0600 Original-recipient: rfc822;saillant@vmh.cc.wmich.edu From Don Williams, small.corgi@verizon.net 29 Jan 2003 1) The Program for the 2003 Annual Meeting of the Organization of American Historians (3-6 April, Memphis) has an interesting announcement on page 58 re a session to discuss how the historical profession should respond to the Arming America incident. I assume that many subscribers to H-OIEAHC are members of OAH, will be attending the general Meeting, and might be interested in attending the Arming America session. This is an initial session -- my understanding is that a more formal one has been postponed to the 2004 meeting. I mention here some problems that I see developing with this session. 2) Speaking as an OAH member, I think that the OAH leadership should have chosen more neutral co-hosts for this session. Initially, Jon Wiener was cited as sole host. Mr Wiener wrote an article in Nation magazine in October 2002 (prior to Bellesiles' resignation) which was a very partisan defense of Bellesiles. (See http://www.thenation.com/doc.mhtml?i=20021104&c=1&s=wiener .) In my opinion, Mr Wiener’s article focused more on ad hominem speculations re the motives and shortcomings of James Lindgren and Clayton Cramer than on objectively examining the historical record, primary sources, and other evidence. Given the enormous amount of unpaid time Clayton Cramer has put into investigating and revealing the shortcomings of Arming America, I would have expected OAH Director Formwalt to have asked Mr Cramer to co-host the session --to lend some balance. Instead, the History News Network recently indicated that OAH Director Formwalt has asked Paul Finkelman , Chapman Distinguished Professor of Law, University of Tulsa College of Law, to serve as co-chair (see bottom of text at http://hnn.us/articles/691.html ). Note that Mr Finkelman was one of the 11 scholars, including Michael Bellesiles, invited to present at the Joyce Foundation's Symposium on the Second Amendment,held at Chicago Kent Law School in April 2000. The purpose of this Symposium was to develop defenses of the "collective right"(pro-gun control) interpretation of the Second Amendment. Mr Finkelman's Chicago Kent article was cited by the Ninth Circuit Court in it's recent ruling that US citizens have no right to own firearms. Mr. Finkelman’s article has several citations to Bellesiles' work to support Finkelman's arguments. Hence, Paul Finkelman may have a bias against discussing findings which further discredit Arming America because (a) Finkelman appears to share Bellesiles’ blinkered view of the Second Amendment’s historical context and (b) additional findings of errors in Arming America would also reflect on Finkelman to a degree -- since such errors would suggest that Finkelman showed poor judgement and scholarship in citing Bellesiles. 3) A look at recent history shows that Arming America was the spearhead for a strong campaign by prominent historians to promote the gun-control interpretation of the Second Amendment in the precedent-setting Supreme Court case US vs Emerson. Jack Rakove’s and Paul Finkelman’s Chicago Kent articles, with their citations of Bellesiles’ findings, were part of that campaign as was Bellesiles’ contribution at Chicago-Kent-- a slightly-rewritten version of Arming America’s Chapter Seven. In his post on Monday , Jack Rakove of Stanford repeated an assertion that he’s made several times --that Arming America has little to say re the Second Amendment. I blinked (for the second time) when I read that statement -- my understanding is that the keynote address at Jack Rakove's Symposium on the Second Amendment (held in April 2001 at Stanford ) was a speech by Michael Bellesiles entitled "How Americans Became an Armed People" -- see http://www.rkba.org/research/stanford-law-conference.txt . Recall that Roger Lane’s glowing review of Arming America in the Journal of American History practically raved over the impact Arming America would have on Second Amendment interpretation -- see the 21 June H-OIEAHC post at http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=h-oieahc&month=0206&week=c&msg=umI0VTNGvF%2bhn4r/TG2NJA&user=&pw= . The jacket of Arming America has Michael Zuckerman’s statement that “our understanding of the Second Amendment “ will never be the same -- that “Michael A. Bellesiles is the NRA’s worst nightmare.” 4) I think that the OAH leadership needs to realize that the Bellesiles/Arming America issue is far from over -- and that OAH is on the hook to address the Arming America incident in a timely, transparent, and objective fashion. There are three reasons for this: One, OAH was directly responsible for giving Arming America credibility before the courts and the public -- by publishing Bellesiles' seminal article "The Origins of Gun Culture in the United States, 1760- 1865" in the OAH’s 1996 Journal of American History (JAH) , by refusing to publish Clayton Cramer's early critique of Bellesiles' 1996 article in the JAH , by awarding Bellesiles the Binkley-Stephenson award for the 1996 article, by publishing Roger Lane’s uncritical, glowing review of Arming America in the JAH circa 2000, and by printing Bellesiles's letter "Disarming the Critics" in the November 2001 OAH newsletter. Note that the Binkley-Stephenson award probably helped Bellesiles get the fellowship at the Stanford Humanities Center (where he wrote Arming America) since the 1996 JAH article was the forerunner to Arming America. Note that even the Emory Committee criticized the lack of editorial checking at the OAH’s Journal of American History (JAH) for Bellesiles 1996 article. So when is the editor at the Journal of American History going to respond to the events of the past year -- to the Emory findings, to Columbia’s withdrawal of the Bancroft, Knopf’s suspension of publication, etc? (See http://hnn.us/comments/1576.html , http://hnn.us/comments/1594.html , http://www.oah.org/pubs/nl/2001nov/bellesiles.html , http://www.emory.edu/central/NEWS/Releases/Final_Report.pdf ) 5) A second reason for OAH to act is that Bellesiles' historical narrative is heavily embedded within the case files of two recent precedent-setting Second Amendment cases -- US vs Emerson (Fifth Circuit Court of federal appeals) and Silveria v Lochyer (Ninth Circuit Court). Note that the Fifth Circuit Court ruled that Timothy Emerson had to stand trial on a gun possession charge, in spite of his Second Amendment right --and that the Court noted their ruling was a close decision. Since then, Emerson has been tried , convicted and is appealing his conviction to the Fifth Court and probably to the Supreme Court. Timothy Emerson is not facing academic sanctions --he is facing 2 1/2 years in prison plus loss of civil rights as a convicted felon. Where the historical narrative in the above two cases is false, OAH has an obligation to correct it before Emerson's appeal is heard by the Supreme Court. Moreover, future Second Amendment jurisprudence will depend on the files in those two cases. While Knopf has ceased publication of Arming America, the Chicago-Kent articles --with their extensive citations of Bellesiles work and the slightly rewritten version of Arming America’s Chapter Seven -- are being promulgated as a book entitled “The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms “ (Carl T Bogus, ed.) --see http://www.amazon.com/exec/obidos/tg/detail/-/1565846990/qid=1043910725/sr=8-1/ref=sr_8_1/103-1494709-4919837?v=glance&s=books&n=507846 . It seems to me that publication of this book should be suspended and the Bellesilesian content reviewed for possible excision, given that Knopf has suspended publication of Arming America. This past Monday, an embarrassed Ninth Circuit Court amended it’s ruling in Silveria v Lochyer to delete two direct citations to Bellesiles’ work -- but the Court’s action was laughable given that it’s ruling makes references to the Chicago Kent articles to support it’s reasoning --and the Chicago Kent articles are studded in turn with references to Michael Bellesiles’ historical narrative. Plus the Ninth Court’s ruling shows that it took more from Bellesiles’ Chicago Kent article than what it cites. On page 214 of Arming America, Bellesiles states that the point of Chapter Seven is “the historical context of that [Second] amendment.” In his Chicago Kent article --a slightly modified version of Chapter Seven, Bellesiles says "This Article is concerned with capturing the social, legal, and military context of the Second Amendment." Of course, if you define the context of the Second Amendment's creation then you largely define it's meaning and interpretation. Like Bellesiles, the Ninth Court has a narrow view of the Second Amendment’s historical context. Like Bellesiles, the Ninth Court speaks of the Second Amendment in the context of Shay’s Rebellion --of the need to prevent insurrection. Like Bellesiles, the Ninth Court ignores a larger threat that the early Congress feared -- a coup within the federal standing army , possibly led by some future President. Neither Bellesiles nor the Ninth Court mention the Newburgh Conspiracy of 1783 -- the plot within the Continental Army officer corps to overthrow Congress. Neither Bellesiles nor the Ninth Court mention a later event in 1783 --when an unit of the Continental Army surrounded Independence Hall with Congress in session, forcing Congress to flee to the Princeton, New Jersey militia for protection. (see “Letters of Delegates to Congress ,1775-1783”). Neither Bellesiles nor the Ninth Court considers whether the militia --the broad mass of armed citizens -- is an essential constitutional mechanism which protects Congress from coercion by the Executive Branch and how a Second Amendment interpretation needs to take into account that part of the checks and balances. Paul Finkelman’s Chicago Kent article seems to share Bellesiles’ view of the “historical context” of the Second Amendment -- Shay’s Rebellion, insurrection,etc. Note also that the Fifth Circuit Court cites Michael Bellesiles’ Chicago Kent article -- the slightly revised version of Arming America’s Chapter Seven -- as one of the canonical documents defining the “collective right” interpretation of the Second Amendment. 6) A third reason for OAH to act is to provide justice to Michael Bellesiles himself -- he has a family to support and he deserves a fair hearing. For the sake of future employment, he deserves to have the historical profession point out where he was correct, partially correct, or honestly mistaken - as well as where he was wrong or misleading. My post of 24 January showed how Bellesiles’ probate record results might have been the result of an honest mistake vice fraudulent research. But why am I having to defend Bellesiles? Why is he not being defended --where a defense is possible -- by those prominent historians who brought his work into the public forum and into the legal system: Jack Rakove, Garry Wills, Paul Finkelman and the other presenters at the Chicago Kent conference, Don Higginbotham, Saul Cornell, Carl T Bogus, signers of the Yassky amicus curiae in US vs Emerson, and the historians who were on the editorial staff of OAH’s Journal of American History in 1996 and 2000 ? 7) Recall how the Fifth Circuit and Ninth Circuit cases came to be contaminated with Bellesiles’ now-questionable historical narratives: a) Bellesiles wrote Arming America on fellowship at the Stanford Humanities Center b) 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 “individual right” to own a firearm c) In 1999, Northwestern historian Garry Wills released the book "A Necessary Evil". Wills argued that advocates of an "individual right" (anti-gun control) interpretation of the Second Amendment 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…” d) Later, in October 1999, prominent historians Saul Cornell and Don Higginbotham joined with Michael Bellesiles in writing articles for the Constitutional Commentary which challenged the "individual right" interpretation. Both Higginbotham and Bellesiles cite Bellesiles' 1996 article in the Journal of American History -- see http://www.potomac-inc.org/higg.html and http://www.potomac-inc.org/mbelles.html . Saul Cornell cited another article by Bellesiles. e) Around that time, the prosecutor appealed Judge Cumming's dismissal of charges against Emerson, arguing "“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 also cited the articles by Cornell and Higginbotham, Will’s A Necessary Evil, and an article by historian Carl T. Bogus, which also reference Bellesiles’s work. See http://www.saf.org/EMERSONgovtrepl.html f) The prosecution was supported by the Amicus brief filed by the “Ad Hoc Group of Law Professors and Historians” --aka the “Yassky Brief.” Michael Bellesiles was one of the 53 members of the Ad Hoc Group. The Yassky Brief argued: “Of particular importance, historians specializing in the Founding period have rejected claims made by the individual rights theorists as anachronistic.” The brief cited the Constitutional Commentary articles by Bellesiles, Cornell, and Higginbotham (see http://www.potowmack.org/yass.html ) g) 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. Michael Bellesiles, Don Higginbotham, and Saul 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." Note that the Center filed a gun-control amicus in US vs Emerson. (See http://www.gunlawsuits.org/defend/second/symposium/symposium.asp and http://www.saf.org/CenterToPreventHandgunViolencebrief.htm ) h) In April 2000, the Joyce Foundation, a gun-control advocacy group, sponsored another Second Amendment Symposium with the Chicago-Kent Law Review. In the introduction to the Symposium, Carl T. Bogus defined 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.". i) The Joyce Foundation’s web site indicates that it had assets of about $800 million in 2001and that it gives $millions each year in grants to address "Gun Violence". See http://www.joycefdn.org/programs/gunviolence/gunviolencemain-fs.html . For example, the site indicates that the Joyce gave $800,000 to the Violence Policy Center in 2002 ("To support research, public education, communication, and advocacy efforts promoting public health oriented gun violence prevention policies."), $1,200,000 to the University of Pennsylvania in 2001 ("To strengthen the Firearm Injury Center and to expand the Medical Professionals as Advocates Program. "), and $1,000,000 to the Violence Policy Center in 2000 ("To support its efforts to promote public health-oriented gun policy through research, public education, coalition building, and advocacy "). The Joyce's site indicates that it gave $84,000 in 1999 to the Chicago Kent College of Law (at the Illnois Institute of Technology). The grant was "For a symposium and law review on the Second Amendment" . The Chicago Kent Second Amendment Symposium was held in April 2000. j) the papers submitted at the Chicago Kent Symposium were published as an edition of the Chicago Kent Law Review -- See http://lawreview.kentlaw.edu/Articles/76.1/contents76.1.htm . As noted, one of the articles was by Bellesiles. A search within the other articles for keyword “Bellesiles” shows numerous citations of Bellesiles’ work by the other authors. Bellesiles probate study results are cited frequently -- Michael Dorf notes, for example: “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.” k) However, other historical findings by Bellesiles were also cited to refute the “individual right” interpretation of the Second Amendment. In his Chicago Kent article, for example, Jack Rakove explained the importance of Bellesiles’ research: “Bellesiles is evidently the first historian to examine the actual use of firearms in the colonial, Revolutionary, and post-Revolutionary eras.144 What he discovers, among other things, is that many, perhaps the majority of American households, did not possess firearms; that Americans imported virtually all of their firearms; that the weapons they had were likely to deteriorate rapidly, firearms being delicate mechanisms, prone to rust and disrepair; that gunsmiths were few, far between, and not especially skilled; that the militia were poorly armed and trained, their occasional drilling days an occasion for carousing rather than acquiring the military art; that Americans had little use for hunting, it being much more efficient to slaughter your favorite mammal grazing in the neighboring pasture or foraging in nearby woods than to take the time to track some attractive haunch of venison with a weapon that would be difficult to load, aim, and fire before the fleshy object of your desire went bounding off for greener pastures. (Trapping was much more efficient than hunting, and hunting was a leisure activity for the elite.)145 All of these considerations make plausible and explicable the concerns we have already noted in describing the Virginia ratification debate of mid-June 1788: that without a national government firmly committed to the support of the militia, the institution would wither away from inefficiency, indifference, and neglect (which is pretty much what happened in any case, for reasons both Federalists and Antifederalists readily foresaw). “ (NOTE: As I’ve noted in several H-OIEAHC posts, I think that Bellesiles’ depictions of the early militias are false and misleading (Cowpens, 1815 Battle of New Orleans,etc.) ) l) Several of the Chicago-Kent Law Review articles were cited in the Fifth Circuit Court’s ruling -- among those were Michael Bellesiles’s article “The Second Amendment in Action”, the slightly modified version of Chapter Seven of Arming America. (See http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm and search for “Bellesiles” ) m) The Chicago Kent articles are also cited in the Ninth Circuit Court’s recent Silveira decision -- see http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement and search for “CHI.” n) Note that the Violence Policy Center (VPC) --recipient , remember, of million dollar grants from the Joyce --is promoting the problematical Chicago Kent articles without noting that the articles were funded by the very same Foundation that funds the VPC "To coordinate a national media strategy on gun violence" and without, to my knowledge, noting the Bellesilesian content. For example, in it's Dec 5, 2002 Press Release on the Ninth Court's ruling (that the American people have no Second Amendment right to "keep and bear arms"), the VPC noted the following: " Citing cutting-edge scholarship such as the 2000 Chicago Kent Law Review—Symposium on the Second Amendment: Fresh Looks, the Silveira decision details the history and context of the Second Amendment, as well as existing legal precedent, and makes clear that the Second Amendment does not guarantee an individual right to keep and bear arms. o) Finally, note that Arming America was introduced to the public in 2000 with very favorable reviews by historian Garry Wills (New York Times ) and Carl Bogus (American Prospect) -- see http://www.nytimes.com/books/00/09/10/reviews/000910.10willot.html and http://www.prospect.org/print/V11/26/bogus-c.html 8) The bottom line is that the Bellesilesian history introduced by OAH is spreading throughout the legal system. Given recent events, OAH has a duty to determine what part of that history is false and needs to be excised from the public records so that it does not mislead judges deliberating on the civil rights of Americans. OAH also needs to determine what part is true and to Bellesiles’ credit.
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