Second amendment thread

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Apr 18 11:40:10 PDT 2007 

	As to Fourteenth Amendment-era references to the right to bear
arms, consider sec. 14 of The Freedman's Bureau Act (1866):

	"And be it further enacted, That in every State or district
where the ordinary course of judicial proceedings has been interrupted
by the rebellion . . . the right to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase, lease, sell, hold,
and convey real and personal property, and to have full and equal
benefit of all laws and proceedings concerning personal liberty,
personal security, and the acquisition, enjoyment, and disposition of
estate, real and personal, including the constitutional right to bear
arms, shall be secured to and enjoyed by all the citizens of such State
or district without respect to race or color, or previous condition of
slavery."

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Michael Lawrence
> Sent: Wednesday, April 18, 2007 9:25 AM
> To: Lawrence Rosenthal; Mark Tushnet; ConLaw Prof; Frank Cross
> Subject: RE: Second amendment thread
> 
> Perhaps the best evidence of the Fourteenth Amendment 
> framers' intent to apply the Bill of Rights, including the 
> second amendment, to the States was the fact that the 
> Amendment's principal sponsors in the House and Senate, Rep. 
> John Bingham and Sen. Jacob Howard, said so on the floor 
> during the debates on the Amendment.  Howard said,  
> 
> "[Section One is intended to impose a] general prohibition 
> upon the States, as such, from abridging the privileges and 
> immunities of the citizens of the United States*. It is not 
> very easy to define with accuracy what is meant by the 
> expression, "citizen of the United States."* To these 
> privileges and immunities, whatever they may be * for they 
> are not and cannot be fully defined in their entire extent 
> and precise nature * to these should be added the personal 
> right guarantied and secured by the first eight amendments of 
> the Constitution; such as the freedom of speech, *  [and] the 
> right to keep and to bear arms*"  CONG. GLOBE, 39th cong., 
> 1st Sess. 2765-66 (1866).
> 
> As Michael Curtis, Akhil Amar and other scholars (myself 
> included, in a forthcoming Mo. L. Rev. piece on incorporation 
> of the second amendment * shameless plug) have suggested, no 
> one stood up at the time to challenge these interpretations * 
> it would seem if anyone objected to the understanding that 
> the privileges or immunities clause would apply the Bill of 
> Rights to the states, then would have been the time to do so. 
>   This was Justice Black's point in his Adamson dissent, as 
> well * inviting the Court to go back and review what actually 
> happened during the debates over the Fourteenth Amendment in 
> the Thirty-Ninth Congress.  Re: SlaughterHouse, Cruikshank, 
> and Presser, there are strong arguments the Court simply got it wrong.
> 
> Michael Lawrence
> Michigan State University College of Law
> 
> >>> "Rosenthal, Lawrence" <rosentha at chapman.edu> 4/18/2007 
> 11:28 AM >>>
> Even putting aside the difficulties reading the Fourteenth 
> Amendment to somehow update the meaning of the Second 
> Amendment, and also putting aside that a 1868 view of the 
> Second Amendment still does not address the problems I have 
> raised concerning whether an individual-rights view could 
> develop administrable rules for regulation of the right to 
> bear today's arms, there are also formidable barriers to 
> incorporation of the Second Amendment.  Incorporation was 
> rejected in United States v. Cruikshank and Presser v. 
> Illinois, and these cases remain good law.  Cruikshank, in 
> particular, used originalist methods of interpretation, and 
> was decided by a court that should have had a good grasp of 
> the original meaning of the Fourteenth Amendment.  Should not 
> originalists pay it special deference?  Moreover, the case 
> for second amendment incorporation, at least under principles 
> of original public meaning currently popular in the academy, 
> is particularly weak.  What portion of the text of the 
> Fourteenth Amendment had an original public meaning that 
> included the right to bear arms?  Most originalist arguments 
> for incorporation focus on the privileges and immunities 
> clause, but the most well known explication of privileges and 
> immunities as of 1868 was Justice Washington's discussion in 
> Corfield v. Coryell, and he did not list the right to bear 
> arms as among the privileges and immunities of citizens.  
>  
> Larry Rosenthal
> Chapman University School of Law
> 
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Frank Cross
> Sent: Wed 4/18/2007 8:05 AM
> To: Mark Tushnet; ConLaw Prof
> Subject: Re: Second amendment thread
> 
> 
> 
> Mark Tushnet's approach raises a very interesting question.  
> Of course, the whole problem is evaded if, in 1868, they used 
> a 1789 original meaning approach to interpretation.  Then, 
> what was incorporated in 1868 would have been the 1789 
> meaning.  But that would need to be established.  And it 
> raises interesting questions about interpretation -- if the 
> identical words have different meanings depending on the time 
> of their adoption, does it really make sense, or even comport 
> to textualism and the rule of law to employ those different 
> original meanings.
> 
> 
> 
> At 08:24 AM 4/18/2007, Mark Tushnet wrote:
> 
> 
> 	Content-class: urn:content-classes:message
> 	Content-Type: multipart/alternative;
> 	         boundary="----_=_NextPart_001_01C781BC.E0AEF40E"
> 	
> 	It occurred to me that my comment might have been 
> clearer:  The problem with the original meaning approach in 
> the incorporation context is that the original meaning has to 
> be partially recursive (the Fourteenth Amendment "refers to" 
> the words used in the Bill of Rights in 1789), and partially 
> non-recursive (giving those words the meaning they would have 
> had had they been uttered in 1868).
> 	 
> 	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)
> 	 
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