Hard At Work On Another Law Review Article

Hard At Work On Another Law Review Article

The layoff pretty well took the steam out of my efforts in support of the lawsuits attempting to get the 2nd Amendment incorporated through the 14th Amendment against the states. (If I were a paranoid megalomaniac, I would assume that was the reason for the layoff!) But my job situation, while still not good (I'm driving to Bend shortly for another week), at least has enough money coming in to cover all my bills without a struggle. Therefore, I have resumed work on a paper about original public meaning.

A little explanation, for those who don't spend too many hours reading this stuff. When one claims to be an originalist concerning the Constitution, this used to mean, original legislative intent: what did the body that passed a bill, wrote the Constitution, or passed an amendment, intend for it to do?

One of the common criticisms of originalism (and there is real merit to the concern) is that sometimes there was no agreed upon original intent. They may not have discussed every detail. For example, there's a lot of Congressional debate about the militia clause of the Second Amendment, and the religiously scrupulous clause (which was scrapped by the Senate), but essentially no discussion of the "right of the people" clause. I believe that we have demonstrated that the lack of debate or even discussion of this clause was because there was a well understood meaning to it, and the meaning was so universal that no one felt a need to discuss it. (We wouldn't much debate the meaning of "blue" today, would we?)

Another criticism of original intent is that while the legislature or Constitutional Convention may have understood a particular clause to mean X, the population at large might not shared that understanding--perhaps 3/4 of the population thought it meant X, and another 1/4 thought it meant Y. Trying to determine the original public meaning is a lot harder to do, and requires you to do a lot of digging through newspapers, letters, and other accounts--and it also requires you to be very honest in admitting when you find minority viewpoints. Perhaps only a couple of kooks thought that the meaning was Y. Perhaps there was a sizeable minority viewpoint that the meaning was Y. You can't just ignore minority viewpoints, if you want to be honest.

My friend David Hardy is completing a law review paper right now about the original public meaning of section 1 of the Fourteenth Amendment--which includes the privileges and immunities clause. This is an important and valuable piece of scholarship, since the Supreme Court has done a really fine job of mucking up Fourteenth Amendment jurisprudence from the first decision, The Slaughter-House Cases.

Anyway, the paper that I am working on--and which Professor Joe Olson is going to be contributing to--attempts to determine the original public meaning of the right to keep and bear arms in the period leading up to the ratification of the 14th Amendment. If the privileges and immunities clause was widely understood as imposing the Second Amendment onto the states, then it is vital to understand what meaning the people understood the Second Amendment to have in 1868 and the years leading up to it.