A plea about "Heller"

Rosenthal, Lawrence rosentha at chapman.edu
Tue Jul 1 19:56:34 PDT 2008


One interesting aspect of Heller is that it pretty plainly lines up with the original public meaning camp.  When it comes to the original public meaning of "privileges and immunities," I'd say the evidence is in pretty deep conflict about whether it included the Second Amendment.  Certainly John Harrison and David Currie made pretty powerful arguments that the original meaning of the clause was purely a nondiscrimination provision.  And it is interesting, isn't it, that the entire Supreme Court somehow forgot that "privileges and immunities" included the right to bear arms in the Cruikshank case (1875)?  Cooley forgot the same thing in his treatises.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Tue 7/1/2008 7:14 PM
To: Rosenthal, Lawrence; Gerber, Scott; Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: A plea about "Heller"



The difference is that, despite during the discussions of the early
Reconstruction era, the personal right to bear arms was often
discussed in terms which made it clear that it was understood to be
one of the privileges and immunities of national citizenship.  So one
doesn't need incorporation per se to get to Second Amendment-like
protections against state laws.

At 08:43 PM 7/1/2008, Rosenthal, Lawrence wrote:
>At the risk of provoking outraged howls of indignation from the
>rather remarkable gun-rights coalition, I suppose the argument
>against Second Amendment incorporation would be that like the
>unincorporated grand jury and civil jury rights, the Second
>Amendment right recognized by the Court -- especially in the
>amazingly muscular form that has been recognized by the Court -- is
>unnecessary to achieve "ordered liberty" -- the current test for incorporation.
>
>Larry Rosenthal
>Chapman University School of Law
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Gerber, Scott
>Sent: Tue 7/1/2008 2:38 PM
>To: Volokh, Eugene; conlawprof at lists.ucla.edu
>Subject: RE: A plea about "Heller"
>
>
>
>Eugene's post raises a question in my mind.  What would be the
>argument _against_ incorporating the Second Amendment?
>Scott
>
>*****************************
>Scott Douglas Gerber
>Professor of Law
>Ohio Northern University
>Ada, OH 45810
>419-772-2219
>http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
>http://upress.kent.edu/books/Gerber_S.htm
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Tue 7/1/2008 4:13 PM
>To: conlawprof at lists.ucla.edu
>Subject: A plea about "Heller"
>
>
>
>
>         Folks:  My apologies for being pedantic, but it strikes me as
>interesting that we're now talking about what happens "after Heller" --
>even before the right has been incorporated against the states -- when
>at least 40 of the 50 states have individual self-defense rights to bear
>arms in their state constitutions.  The federal Constitution seems to
>have gotten such a grip on our consciousness (even though we're
>constitutional law professors) that we talk about a Second Amendment
>that hasn't yet been incorporated (and might not get incorporated)
>rather than the state constitutional rights that have long been the law
>in most of the country.  I find myself slipping into this pattern at
>times as well.
>
>         Hence my plea, which I again acknowledge is a little pedantic
>but which might help us shed our federal blinders:  Let's talk about the
>right to bear arms, state and federal, rather than the Second Amendment
>and Heller.
>
>         Eugene
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