Second amendment thread
Rosenthal, Lawrence
rosentha at chapman.edu
Wed Apr 18 20:51:36 PDT 2007
It is also fair to say that scholars are not of one mind on the subject of original meaning and incorporation. For a wonderful article that surveys the extent of the scholarly disagreement on the original meaning of the Fourteenth Amendment, see Bret Boyce, Originalism and the Fourteenth Amendment, 33 Wake Forest L. Rev. 909 (1998). Surely the way to resolve questions of incorporation is not to count the number of scholars on each side of the debate. So I ask again: if there was a "widely used" original meaning of the Privileges and Immunities Clause that required complete incorporation (as opposed to an idiosyncratic view indulged by a small circle of Republican lawyers like Bingham), how did that "widely understood" original meaning escape the notice of every member of the Supreme Court is Cruikshank? How did it escape the notice of Thomas Cooley, who wrote the definitive treatise of that era? I find it odd that 21st-century law professors manage to understand the original meaning of the Fourteenth Amendment better than the most eminent judges and scholars of the framing era.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Michael Lawrence
Sent: Wed 4/18/2007 7:28 PM
To: Rosenthal, Lawrence; Mark Tushnet; Eugene Volokh; conlawprof at lists.ucla.edu
Subject: RE: Second amendment thread
I think it's fair to say that Charles Fairman's conclusions (like those of Raoul Berger and of the Dunning School at Columbia before them) have been called into serious question by the work of such scholars as, first, Charles Crosskey, and more recently (again) Akhil Amar, Michael Curtis, Richard Aynes (exposing the alliance between Fairman and Justice Frankfurter), and Eric Foner, to name just a few.
>>> "Rosenthal, Lawrence" <rosentha at chapman.edu> 4/18/2007 5:29 PM >>>
If that is so, how did the Court in Cruikshank and Presser manage to
miss this "widely used" original meaning?
The phrase "privileges and immunities" within the meaning of Article IV
had been construed prior to 1868 to exclude the Bill of Rights. I
remain persuaded by Charles Fairman that there was little support as of
1868 for Bingham's apparent view that "privileges and immunities"
included the Bill of Rights. Fairman may have erred in rejecting any
incorporation -- the Corfield definition was fuzzy enough to support
incorporation of rights thought to be fundamental -- but that would, at
most, support some form of selective incorporation, rather than
demonstrating that Cruikshank and Presser are wrong.
-----Original Message-----
From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Wednesday, April 18, 2007 12:44 PM
To: Rosenthal, Lawrence; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Second amendment thread
Eugene may get to this before I do, but: By 1868, the phrase
"privileges or immunities" [I don't think anyone thinks the shift from
"and" to "or" has any significance, although I'd appreciate being
directed to someone who did/does] had become widely used (and publicly
understood?) as a short-hand for "the Bill of Rights and lots of the
stuff referred to in Corfield v. Coryell."
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)
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
Lawrence
Sent: Wednesday, April 18, 2007 3:24 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Second amendment thread
What are we to make of the fact that a very different textual approach
was taken in the Fourteenth Amendment? The Fourteenth Amendment's
Privileges and Immunities Clause, of course, tracks the Article IV
Privileges and Immunities Clause, and that clause had not been
understood to protect a right to bear arms. Moreover, the understanding
of the Second Amendment articulated in Cruikshank and Presser was of a
federalism-preserving provision that resists incorporation.
Larry Rosenthal
Chapman University School of Law
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, April 18, 2007 11:40 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Second amendment thread
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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