The Problem with "Progressive Originalists"

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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

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  1. Outright banning and taxation are both ways to infringe, including, but not restricted to, taxes intended to change the market.

    “[…] shall not be infringed.”

  2. Dubious assertions by the *Journal* reporter and a law professor whom she quotes:

    ‘Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. “The framers of the 14th Amendment were radical redistributionists. The 13th Amendment frees the slaves and there’s no compensation,” he says. “It’s the biggest redistribution of property in history.”‘

    The antislavery idea, codified in the 13th Amendment, is that human beings are not in fact a legitimate form of property (except theoretically in the case of convicts). “Redistribution” would have meant taking slaves from the rich and giving them to the poor, so that the poor could have slaves, too.

    ‘ . . . Justice Scalia’s technique, which focuses on the initial 18th-century constitutional text to find narrow individual rights and limited federal power to protect them.’

    Is that why Scalia delivered a dissenting opinion defending the right of an alleged child-abuser to confront the child who was being a witness against him? Three liberal justices joined Scalia’s dissent, by the way.

    And I suppose that his dissent in the McCain-Feingold case was also a narrow eighteenth-century to find narrow individual rights.

    ‘Today, some conservative scholars agree that Reconstruction framers are on a par with America’s founders.’

    ‘Mr. Amar says these men [Reconstruction Congressmen] deserve even greater veneration than the Revolutionary framers. “Thomas Jefferson and James Madison lived and died as slaveholders,” he says. “The generation that redeemed us from that deserves more credit.”‘

    Yeah, all Jefferson and Madison did was help establish a new nation, founded on principles incompatible with slavery, and win independence from that powerful abolitionist, George III.

    Perhaps Jefferson deserves just a little credit for doing more against slavery than Amar ever did. Did Amar help pass a law which created a humongous slavery-free area in the Northwest Territories? Did Amar sign the bill to completely forbid the African slave trade (having previously signed bills to limit that trade within the restraints of Constitutional provisions limiting that power prior to 1808)?

  3. I have always wondered why we NEED the 14th Amendment. Clearly, US guarantees of habeas corpus, trial by jury, no self-incrimination, etc., have applied EVERYWHERE, in all federal and state jurisdictions, since the ratification of the Constitution. When Congress is prevented from doing something, or a Federal branch of government is commanded to do something, perhaps there is a case that ONLY the Congress or the Federal government may be affected. But such flat statements as “no warrant shall issue,” or “the right of the people to keep and bear arms shall not be infringed” would seem to apply to all governments that are subordinate to the US Constitution — federal, state and local.

  4. Outright banning and taxation are both ways to infringe,

    I believe it was Justice Marshall who said that the power to tax is the power to destroy.

  5. Much of the current federal morass could have been avoided had the Supreme Court not demoted economic rights under political pressure from FDR. That move had no textual basis in the Constitution–it was pure judicial overreach.

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