Second amendment thread (1868 and originalism)

[DavidEBernstein at aol.com]

Has any Justice in any Supreme Court opinion ever looked, for originalist  
reasons, to the public consensus of the rights protected by any of the Bill  of 
Rights circa 1868?  It's always struck me as obvious that for 14th  Amendment 
purposes, it's 1868, not 1791 is relevant, but the "originalist"  opinions I'm 
familiar with always go back to 1791.
 
In a message dated 4/18/2007 11:38:03 AM Eastern Daylight Time,  
Kurt.Lash at lls.edu writes:

No one,  in other words, would have advocated "incorporating the 
original meaning  of the first amendment" for all understood that 
original meaning to be  decidedly federalist--reserving the subject to 
state control.   Obviously, enshrining federalism was not in the minds 
of the  Reconstruction Congress.  As much as they may have embraced the 
words  of the original First Amendment, what they sought to add to the  
constitution was the 1868 public understanding of free expression as a  
privilege or immunity of citizens of the United States.

The same  would be true for the 1868 view the words of the second 
amendment--if in  fact these words came to be viewed as expressing a 
privilege or immunity  of US citizens, then it is this 1868 
understanding that became part of the  Constitution.

Kurt Lash
Loyola Law School, Los  Angeles
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