originalism & 2A

[Michael McConnell]

What, precisely, is the difference between "lawyerly" and "historical"? To
the extent there is a difference (and I suspect there is), what are the
virtues of each? (I put aside the notion that "lawyerly" is simply a
pejorative, meaning biased and sloppy. Plenty of lawyerly work is certainly
that; and plenty of historians' work, too.)

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112

-----Original Message-----
From: Randy Barnett [mailto:rbarnett at BU.EDU]
Sent: Thursday, October 18, 2001 9:13 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: originalism & 2A


Do not fear; this is not a response to Jack's latest reply.  I am content to
let matters rest where they are.  For those who want a single compendium of
most of the evidence that bears on the original meaning of the Second
Amendment--perhaps to assign to students in your Con Law course--you can
find it in the 5th Circuit majority opinion in U.S. v. Emerson (99-10331).

There the court evaluates sensitively the "individual rights," "states
rights," and "sophisticated collective rights" interpretations of the
Amendment and concludes that the evidence best fits the "individual rights"
interpretation.  It then finds that the federal statute at issue is a
reasonable regulation of this right and therefore constitutional.   While
the opinion is rather long, it really is the best and most concise summary
of the available evidence.  It is also, make no mistake, "lawyerly" not
purely "historical"--as originalist constitutional interpretation must
properly be.


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