What Kind of People We Are

[Mark Tushnet]

If one thinks (a) that the Second Amendment is incorporated into the
Fourteenth, and (b) that the relevant understanding should therefore be
that of the relevant decision-makers (ratifiers, etc.) in 1868 [or that
the meaning is the one that the relevant public would have attributed to
the words of the Second Amendment as incorporated into the Fourteenth in
1868], the case for the individual rights view as applied to states is
much stronger than that for that view as applied to the national
government in 1789 (that's a comparative claim, not one about where the
baseline is).

 

Note that an "original meaning" formulation with respect to
incorporation is really, really tricky:  It has to be along the lines:
"The public meaning of the words 'due process of law' or 'privileges or
immunities' in 1868 was/included 'the Bill of Rights, including the
right to keep and bear arms,' with the meaning given to, e.g., 'the
right to keep and bear arms' the public meaning as of 1868 rather than
1789."  Here, I think, whatever position one might take generally,
original understanding formulations are cleaner than original meaning
ones.

 

Mark Tushnet

William Nelson Cromwell Professor of Law

223 Areeda Hall

Harvard Law School

Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Rahdert
Sent: Wednesday, April 18, 2007 9:08 AM
To: Scarberry, Mark; ConLaw Prof
Subject: RE: What Kind of People We Are

 





I have often wondered about this argument, and how committed
originalists (among whom I do not count myself) respond to it.  It seems
to me that if it were carried forward to the bulk of rights that have
been incorporated and applied to the states, it would shift a lot of
originalist discourse (at least on issues of political and civil rights)
away from the late 18th and toward the postwar 19th century.  As an
example, it would make what Bingham thought about, say, freedom of
religion or freedom of expression, much more important than what Madison
thought on those subjects, would it not?

Mark Rahdert
Temple

 At 12:23 AM 4/18/2007, Scarberry, Mark wrote:



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It's perhaps too soon to be discussing this, after the terrible events
at Virginia Tech, but perhaps a brief response is appropriate.
 
I lean toward an individual rights approach but have not focused on
Second Amendment issues. Is an approach under which the Second Amendment
would cover weapons more modern than flintlocks any more of a Living
Constitution approach than a First Amendment approach that covers
communications by telephone, telegraph, cable TV and Internet? In any
event, to the extent the Second Amendment is incorporated through the
14th against the States, wouldn't the question be what weapons were
commonly used by individuals at the time of ratification of the 14th
Amendment (1868)? That would include at least some versions of the
Winchester repeating rifle (first produced in 1866 according to
Wikipedia), Spencer repeating rifles, Colt revolvers, and shotguns.
 
Mark Scarberry
Pepperdine

________________________________




Mark C. Rahdert
Professor of Law
Temple University
Beasley School of Law
1719 North Broad Street
Philadelphia, PA  19122

Phone: 215-204-8966
Fax: 215-204-1185
Email: mark.rahdert at temple.edu
  

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