Real historical meanin V incorporation.

Tue Feb 28 16:13:10 PST 2012

I find it interesting that you are pontificating on "fake history" so soon after your post claiming that the Virginia Tech shootings would not have happened if it were not for the SCOTUS ruling on Heller.

________________________________
From: Calvin Johnson <CJohnson at law.utexas.edu>
To: forwarding for fcross <crossf at mail.utexas.edu> 
Cc: "ConLawProf (conlawprof at lists.ucla.edu)" <conlawprof at lists.ucla.edu> 
Sent: Tuesday, February 28, 2012 3:52 PM
Subject: RE: Real historical meanin V incorporation. 

No question.  I am a historian without believing history binds.  But the evil is the argument that bad history binds us.   We have lots of Barbie Doll in the Archeological digs arguments in which the present position is buried as fake history.  Without the fake history no one would care about it  or feel any persuasiveness. 

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 with links to publications: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For an inventory of Shelf Project proposals see  http://www.utexas.edu/law/faculty/calvinjohnson/shelf_project_inventory_subject_matter.pdf
For reviews, and chapters of Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

From:Frank Cross [mailto:crossf at mail.utexas.edu] 
Sent: Tuesday, February 28, 2012 2:12 PM
To: Calvin Johnson; Sanford Levinson
Cc: ConLawProf (conlawprof at lists.ucla.edu)
Subject: RE: Real historical meanin V incorporation. 

It's a living constitution.  Not the province of historians.  If you applied this to the First Amendment, Calvin, rights would be massively cut back.

At 01:52 PM 2/28/2012, Calvin Johnson wrote:

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Sandy

You mean you guys tolerate incorporation of non-existent rights?   You need another word for it, like transubstantiation or transmogrification, or magic  to indicate you are pulling something out of ether, from a black vacuum.  Can you guys do that? 

With my warmest respect and good wishes with full colleageality, as always.

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 with links to publications: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For an inventory of Shelf Project proposals see  http://www.utexas.edu/law/faculty/calvinjohnson/shelf_project_inventory_subject_matter.pdf 
For reviews, and chapters of Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

From: Sanford Levinson 
Sent: Tuesday, February 28, 2012 1:48 PM
To: Calvin Johnson
Cc: ConLawProf (conlawprof at lists.ucla.edu)
Subject: RE: Real historical meanin V incorporation. 

There is no reason at all to believe that Heller depends on Scalia’s strained reading of the Second Amendment (though perhaps he would have written a concurring instead of the majority opinion).  Roberts, Kennedy, or Alito was perfectly capable of writing a better opinion that might have adverted to aspects of the Second Amendment and then gone on to say, with whatever flourishes, that, as is true, say, of certain kinds of sexual behavior, it’s simply part of what Americans have come to see as an entrenched liberty.  (Thomas, of course, would have joined in the hypothetical Scalia concurrence, but a total of five votes in favor of Dick Heller beats the four votes in dissent).

sandy

From: Calvin Johnson 
Sent: Tuesday, February 28, 2012 1:44 PM
To: Sanford Levinson
Cc: ConLawProf (conlawprof at lists.ucla.edu)
Subject: RE: Real historical meanin V incorporation. 

Sandy

Without Scalia’s mistake, Heller goes the other way, because he is the majority and the majority is using an incorporation rationale.  .    And it quite plausibly that is the only way to set up the issue.   If there is nothing to incorporate, then incorporation by the 16th Amendment just moves an empty wine skin from national over the states.    If James Madison misunderstood the 2d A, his misunderstanding is the 2d A ( or mostly there).   But if Charles Sumner misunderstood the 1789 Amendment, it is a mistake.    Indeed quite plausible he would make one.   He is at the end of a long line of gossip in which each argument passed from 1789 to over 75 years later have warped the understanding from its original meaning.  

Going to the 16th A. on these issues for content of say free speech, or press or religion or guns is a bit of a cheat.  Cherry picking what you like perhaps, when 1789 goes the wrong way. 

With my best wishes, as always.

Calvin

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 with links to publications: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For an inventory of Shelf Project proposals see  http://www.utexas.edu/law/faculty/calvinjohnson/shelf_project_inventory_subject_matter.pdf 
For reviews, and chapters of Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, February 28, 2012 12:48 PM
To: Doug Edlin; conlawprof at lists.ucla.edu
Subject: RE: Real historical meaning.

Calvin’s major mistake is the same one as Scalia’s in Heller, i.e., to assume that “gun rights” have much to do with the Second Amendment.  Heller in fact becomes an easy case under the Ninth Amendment or, for McDonald, the Privileges or Immunities Clause of the 14th Amendment, since by the mid-19th century, there is a consensus reaching from Roger Taney (see Dred Scott and its emphasis on the rights that citizens get) to Charles Sumner (see his speech on Bleeding Kansas expressing pleasure that the anti-slavery settlers can have guns, though, admittedly, he attributes that to the Second Amendment).  Calvin may or may not be a “real historian,” but what historians discover about the meaning of the Second Amendment in 1787 is close to irrelevant, as is the case with, say, the First Amendment, which by all accounts had a more limited reach then than it does now.  And so on.  We live under a living Constitution, whether one thinks of
 congressional powers under Article I, Sec. 8, or the rights of otherwise law-abiding Americans to have guns (expressed as a purported “Second Amendment right”).

sandy

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Doug Edlin
Sent: Tuesday, February 28, 2012 12:06 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Real historical meaning.

What a courageous message from Mr. Smith.  His comment about academia makes me wonder why he is a member of this list, and if he is entitled to be.

Doug Edlin

On 2/28/2012 12:58 PM, Calvin Johnson wrote: 
My bullet in Nam was in the leg. Tore up ham and ptu me out of the field for six weeks.   The guy next to me was killed from the same shot burst.   I was in an Infantry Reconnaissance outfit in which more than half the people assigned were dead by end of tour.  

                I am a real historian, trying to figure out 1787 with hard work.  I made a collection of use of the word “militia” in the ratification debate, and in the debates, it refers to the state armies.  The President can nationalize the militia.    Patrick Henry objected to that because if “if they take away our army how can we defend ourselves?”   Mason objected that the President would send the Maine miliiia to Georgia and the Georgia militia to New Hampshire and the states would just drop their militias because it was too much trouble.   Madison who wrote the 2d Amendment is giving a sop to that argument, but note without stopping the President’s ability to nationalize the militias.   And we do not now believe that Northern Virginia is entitled to an Army to protect itself from the US Army.    

Thank you for your note

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 with links to publications: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
For an inventory of Shelf Project proposals see  http://www.utexas.edu/law/faculty/calvinjohnson/shelf_project_inventory_subject_matter.pdf 
For reviews, and chapters of Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

From: Patrick Smith [mailto:psmith24 at cox.net] 
Sent: Tuesday, February 28, 2012 9:59 AM
To: Calvin Johnson
Subject: Speaking before thinking

Dear Professor:  Please see link below

http://www.cleveland.com/chardon-shooting/index.ssf/2012/02/parents_of_teen_accused_of_sho.html 

What was your billet in ‘Nam?  Somewhat surprising to be so quick to shoot/condemn 2nd Amendment rights without adequate background, but 30 plus years in academia can dull any edge you may have once had.  

Respectfully, 

Patrick L. Smith

703 426 1509 hm/ 571 308 4646 cell

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-- 

Douglas E. Edlin

Associate
Professor

Department of Political
Science

Dickinson
College

P.O. Box 1773

Carlisle, Pennsylvania
17013

717.245.1388
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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250 
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