The Problem with "Progressive Originalists"


Saturday's Wall Street Journal featured a long article from Jess Bravin on the ongoing legal battle over whether the 2nd Amendment should apply against state and local governments, focusing in particular on the "progressive originalists" who now side with the gun rights crowd:

After the Supreme Court struck down the District of Columbia's handgun ban last June, gun-rights advocates trained their sights on similar restrictions in Chicago and Oak Park, Ill. Last month, the National Rifle Association received ammunition from an unlikely source: the Constitutional Accountability Center, a liberal litigation shop.

In a brief filed with the federal appeals court in Chicago, the center not only argued that gun ownership is a constitutional right, it also employed the legal method popularized by such conservative icons as Supreme Court Justice Antonin Scalia. That method is originalism, which seeks to apply the law today according to the text's meaning at the time of its adoption.

The issue centers on the original meaning of the Privileges or Immunities Clause of the 14th Amendment. As I've previously argued, the historical evidence overwhelmingly supports the view that the amendment secures individual rights against the states—and those rights include both economic liberty and armed self-defense. But that's not quite how the progressives at the Constitutional Accountability Center see it. In their view, while the 14th Amendment secures 2nd Amendment liberties, it offers no real protection for property rights, liberty of contract, or other economic rights (despite the fact that the amendment was specifically designed to enshrine the individualistic and market-oriented philosophy of the anti-slavery movement). That may be a progressive position to take, but it's hardly an originalist one.  

Read The Wall Street Journal piece here. My take on the Privileges or Immunities controversy here