FW: 2d Amendment and the Party in Exile
crgreen at olemiss.edu
Thu Oct 1 07:10:18 PDT 2009
I think it would depend on the meaning the 1868 folks thought was expressed
by the words of the 14A. If they thought that "privileges or immunities of
citizens of the United States" just means "privileges in the Bill of
Rights," then we'd have to correct their error and use the actual Bill of
Rights, which on this assumption wouldn't include gun rights. But if they
thought that "privileges or immunities of citizens of the United States"
means "privileges widely given under state constitutional law and the common
law to citizens of the United States," then, to the extent that state
constitutional law and common law are themselves infected with the error,
we'd have to use it anyway.
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Kurt Lash
Sent: Wednesday, September 30, 2009 5:55 PM
To: Calvin Johnson
Cc: conlawprof at lists.ucla.edu
Subject: Re: FW: 2d Amendment and the Party in Exile
This raises an interesting interpretive issue which I have heard Steve Smith
at San Diego raise from time to time. Suppose that Calvin is correct: the
original understanding of the second amendment did not include an individual
right to keep and bear arms. But suppose that most people in 1868 wrongly
believed that the original second amendment had announced an individual
right to keep and bear arms. Suppose further that most people in 1868
believed that all individual rights provisions in the original Bill of
Rights were among the "privileges or immunities" held by citizens of the
>From an originalist perspective, how ought we deal with such an error? If
this "erroneous understanding" is constitutionalized as a new individual
right against the states, does the same error have a "reverse incorporation"
effect on the original restriction on the federal government? And, if so,
how? If not, how can this be?
I believe there are plausible answers to these questions that allow for some
form of "incorporation" (though that is not the term I would use). I am
curious though how others deal with the possibility of "erroneous historical
understanding" in 1868 and the impact of that understanding on the original
----- Original Message -----
From: Calvin Johnson <CJohnson at law.utexas.edu>
Date: Wednesday, September 30, 2009 3:40 pm
Subject: FW: 2d Amendment and the Party in Exile
To: "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
> To: 'Steven Jamar'
> Subject: 2d Amendment and the Party in Exile
> On the historical merits it is very easy to distinguish
Heller. Right to bear arms is a state right. It can not be applied against
states. Guns must be integrated into a well ordered militia and the
militia is the state army on call to balance the standing army the feds
would control. Of course, the Party in Exile underrepresented on this
Supreme Court should nto concede Heller either, and it is easy to
distinguish a wrong case. Error has no penumbra.
> Of course the 2d Amendment is trivia given the power of
the President to nationalize all militias, but just fits the amendment into
the meaning of the first 10. They were written as a package indeed as sops
-- a tub thrown out to distract the whale.
> This is not a prediction of the outcome given this Court,
but instead an appeal to the party now in exile from the Court, which shall
> Calvin H. Johnson
> Andrews & Kurth Centennial Professor of Law
> The University of Texas School of Law
> 727 E. Dean Keeton (26th) St.
> Austin, TX 78705
> (512) 232-1306 (voice)
> FAX: (512) 232-2399
> Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
> For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
> From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Wednesday, September 30, 2009 4:20 PM
> To: CONLAWPROFS professors
> Subject: Re: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
> I predict near unanimity on incorporation being found based on the
language of Heller itself. I don't see much percentage in the Heller
dissenters voting against incorporation here. It is a traditional and
historical right and fundamental to liberty. But, as we all know,
predicting the Court is a dicey proposition.
> The conservatives are in a theoretical dilemma -- states rights v. the
language of Heller. The liberals and moderates are much less so -- federal
protection of declared rights should be (relatively) uniform and states
rights arguments will carry less weight.
> Prof. Steven D. Jamar vox: 202-806-8017
> Associate Director, Institute of Intellectual Property and Social Justice
> Howard University School of Law fax: 202-806-8567
<http://iipsj.com/SDJ/> > http://iipsj.com/SDJ/
> "If a man empties his purse into his head, no man can take it away from
him. An investment in knowledge always pays the best interest."
> Benjamin Franklin
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Kurt T. Lash
James P. Bradley Chair of Constitutional Law
Loyola Law School, Los Angeles
kurt.lash at lls.edu
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