Robert Leider has a very exciting paper up on ssrn, "Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second Amendment." Cribbing now from his abstract:
District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.
This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.
It will surprise no one that I'm super interested in talk of pre-Civil War constitutional thought, particularly in the educated public. A couple of quick thoughts on this -- first, Leider's finding that court and public opinion moved together (and generally in the same direction) is important, if unsurprising. I think one of the important tasks for legal historians is to map how courts and the public interact. Second, I'm not surprised that originalism was not a key part of the court opinions, because originalism was a pretty small part of pre-War constitutional thought. Those who made arguments in public about the Constitution much more frequently appealed to general principles of the constitution than to what the framers thought. A great way of illustrating this is that during the Civil War when southern state supreme courts were intrepreting the Confederate Constitution (which was based largely on the United States Constitution), they turned to all sorts of interpretive modes. In fact, sometimes they were really explicit in how they should break free from the past in terms of political theory (and constitutionalism seems to be a part of this as well). For instance, James Bruce said in a graduation address here at UNC in 1841:
It is high time that the South was giving up its old prejudices and antiquated modes of thinking—that it was breaking the ties which unite it to a departed age, and bind together the living and the dead. Our ancestors used the lights of their age, why should we reject the brighter ones of our own? They ran ahead of their times, why should we lag behind ours? They were dissatisfied with their condition, and improved it, let us do likewise; they were wise in their generation, let us be wise in ours.
That's a great insight into the mindset of antebellum legal thinkers -- they were interpreting the Constitution in light of the wisdom of the founding generation and what they had learned since then. Ah, I love applied legal history!
The image is of the Confederate Statue in Boydton, Virginia (the county seat of Mecklenberg County.) I was looking for a statue with a gun from the pre-Civil War era; this is the closest I was able to find this evening. I don't think any of the statues on the Washington Equine Statue in Richmond are holding guns, which is too bad since that would have fit perfectly the theme of this post.
Well, you can look to McDonald v. Chicago, just a couple of years later and see that the SCt is bogus. The Slaughterhouse cases might be the closest we have to original intent of the 14th Amendment:
"We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him."
That about explains it correctly. Look what has happened to the 14th since (or should I more accurately say, "the rest of the Constitution?").
When the post-war amendments were drafted, we had this existing amendment (the 1st) which stated "CONGRESS shall make no law..." You'd have "thunk" that if the balance of sovereign domains between the federal and state governments was to be handed over to the feds, that the drafters of the post-war amendments would have re-written the 1st Amendment to make clear that the prohibition was not only on Congress. It's just one, big "oops." Or maybe they left it just so they could vex us future generations and make us wade through a pile of strained constructions.
The ONLY purpose of the Bill of Rights was to limit the powers of the feds. Then, along comes the 14th. The Slaughterhouse court seemed to have an uncanny recollection of what these new amendments were set out to do. But naturally, reconstruction made the feds a bit drunken with power, and it was only a matter of time before the Constitution would be rendered all but dead.
About every BS clause in Article 8, Section 1 has been warped beyond belief - the general welfare clause, the commerce clause, the necessary and proper clause, etc.
Wickard vs. Filburn - NOT consuming wheat sold in interstate commerce affects interstate commerce.
It took amendments to the Constitution to pass and repeal Prohibition, but merely an act of Congress to step on the toes of citizens of the various states and tell them they couldn't smoke the weed of their choice. At least, says Raich v. Gonzales. Go figure. Oh, yeah, that's because when a lady swears she smokes weed only grown in her back yard and doesn't sell it, she could be lying and selling it across state lines - thus, interstate commerce." You know, the old "guilty until proven innocent" approach to Constitutional construction? It goes like this:
"The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market."
Yep, that lady might say she's not engaging in interstate commerce, but we know all those pot-heads are liars. Therefore, let us decree: "The facts don't matter."
It's all a joke, really. I can't imagine why anyone takes the Constitution seriously anymore. About the best that can be said of today is the citizens will just have to lick their thumbs and put them up in the air to find out when the feds have become too oppressive.
I really don't know why anyone even cares to make Constitutional arguments anymore, except to the extent the argument predictably matches what at least 5 of 9 goofs want it to mean.
Posted by: Jeff Matthews | May 07, 2013 at 01:18 AM