Real historical meanin V incorporation.

Wed Feb 29 05:27:23 PST 2012

I suppose that by citing "real historical meaning" we mean to signify
whatever the politicians or people who gave it any thought intended in
1791 or 1868 when they ratified the second, fifth, ninth or fourteenth
amendment.  Their first intention, I think, was that no one should be
deprived of liberty without due process of law -- or of their
fundamental natural rights under any circumstances at all.  So the
meaning and the prevalent intention of the framers was that we should
always enjoy that "liberty" and those "rights" that we actually do and
should have "sub specie aeternitas" -- which raises the question
whether the personal right to carry a gun is among those rights.  I
think that it would be very difficult to maintain that in 1791 or 1868
or now or at any other point in American history very many people
thought that the personal license to carry a gun was fundamental to
our "liberty" or a basic "right".  And surely anyone who did think so
would be mistaken -- not least because an overabundance of guns leads
to so many horrible tragedies like the one mentioned below.

  The framers were thoughtful and sensible people who loved liberty
and intended for us us to reflect on fundamental questions of liberty
and justice in a serious way. Heller was a disturbing case because it
shows how detached some Supreme Court justices have become from this
American tradition, which goes back to the foundation of our republic.

On Tue, Feb 28, 2012 at 7:13 PM, Dan Parker <danparker75089 at yahoo.com> wrote:
> 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:
>
> Content-Language: en-US
> Content-Type: multipart/alternative;
>
> boundary="_000_51F6B3FDE3C5964BB99ECB81E17EB73904CF150AB3EXCHMAILausti_"
>
> 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
>
>
>
>
>
>
>
>
>
>
>
> _______________________________________________
>
>
>
> To post, send message to
>
> Conlawprof at lists.ucla.edu
>
>
>
> To subscribe, unsubscribe, change options, or get password, see
>
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>
>
>
>
>
>
> Please note that messages sent to this large list cannot be viewed
>
> as private.  Anyone can subscribe to the list and read messages that
>
> are posted; people can read the Web archives; and list members can
>
> (rightly or wrongly) forward the messages to
>
> others.
>
>
>
> --
>
>
>
> Douglas E. Edlin
>
>
>
> Associate
>
> Professor
>
>
>
> Department of Political
>
> Science
>
>
>
> Dickinson
>
> College
>
>
>
> P.O. Box 1773
>
>
>
> Carlisle, Pennsylvania
>
> 17013
>
>
>
> 717.245.1388
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
> 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
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.

-- 
M.N.S. Sellers
Regents Professor
University System of Maryland

Director
Center for International and Comparative Law
University of Baltimore
1420 North Charles Street
Baltimore, Maryland, 21201-5779

telephone: (+1) 410-837-4650
http://law.ubalt.edu/template.cfm?page=680