Originalism

Originalism and Dual-Track Incorporation

Why an originalist might think the same right can mean different things against the state and federal governments after all

|The Volokh Conspiracy |

There's lots to say about Monday's decision in Ramos v. Louisiana, which said that the Sixth Amendment requires unanimous jury verdicts, that the Fourteenth Amendment requires states to obey exactly the same Sixth Amendment standards as the federal government, and that any precedent to the contrary either didn't exist or was overruled. But for now I have just one thought on that middle premise — that incorporated rights must mean the same thing against the states as against the federal government.

Justice Gorsuch's opinion quickly rejects the possibility of so-called "dual-track incorporation," holding that the same rights apply against federal and state governments:

There can be no question either that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is "fundamental to the American scheme of justice" and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government. [Citing Malloy v. Hogan.] So if the Sixth Amendment's right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.

This is generally consistent with governing precedent, and I have a lot of sympathy for this view, but I fear that something important is at risk of getting lost here.

The kind of two-track incorporation that Justice Gorsuch rejects is the "the notion that the Fourteenth Amendment applies to the States only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights.'" I think he rejects this notion for good reason, and it's easy to see why an originalist would be suspicious that this was just a rear-guard action to nullify the incorporation of the bill of rights.

But the fact that this kind of dual-track incorporation is wrong does not mean that all kinds of dual-track incorporation are wrong. In particular, there are at least two possibilities that originalists ought to seriously consider that would result in incorporated rights under the Fourteenth Amendment having a different scope from the enumerated rights against the federal government.

First, it's possible that incorporation is an indirect consequence of the Fourteenth Amendment rather than a direct consequence. Under several major theories of the Due Process and Privileges or Immunities Clauses, the Amendment protects the Bill of Rights not because it was a direct cross-reference to the Bill of Rights but because it protects rights with a certain property — rights understood to be fundamental in 1867/8, or at some other time, etc. On these theories of incorporation, the fundamental rights or privileges and immunities protected by the Fourteenth Amendment might have some daylight from the positive rights constitutional rights codified in 1791.

This brings us to the second issue, which is historical rather than theoretical. The public understanding of various constitutional rights was different in 1867/8 than it was in 1791. For instance, it's debatable to what extent the right to keep and bear arms was understood as a right of self-defense at the Founding, but pretty clear that it was so understood during Reconstruction. Understandings of speech and due process had changed too. A lot changed.

It's therefore quite plausible for an originalist to apply a dual-track approach, using the 1791 understanding for the federal government, and the 1867/8 understanding for the state governments. Indeed, that might even be the most intuitive approach for an originalist, like Justice Gorsuch. Now this dual-track approach is not inevitable. For instance, it's also plausible that the Framers of the 14th Amendment incorrectly believed that their understanding of the Bill of Rights was the same as that at the Founding, and that their commitment to the same-ness principle is controlling even if it leads to 1791 controlling over 1867/8. Or maybe the Fourteenth Amendment implicitly amended the Bill of Rights and re-indexed all of them to 1867/8 for both governments. But the originalist dual-track approach is plausible, and even intuitive. The rejection of a "watered-down subjective" dual-track approach doesn't tell us whether to reject an originalist dual-track approach.

I don't think this matters for Ramos. From my skim of the sources, it doesn't look like the understanding of unanimity in 1867/8 was much different than in 1791. So even if we adopt an originalist dual-track approach, the two tracks would run to the same place here. But there are plenty of cases where it will matter, and as we spend more time recovering the original meaning of the Bill of Rights and the Fourteenth Amendment, we need to figure out whether they really should be on identical tracks.

[Cross-posted from Summary, Judgment]

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  1. Can we make the leap to the second amendment?
    Would this same logic mean that no state can infringe more than the feds do?
    That all the states have to infringe in the same way?

    1. The second Amendment applies to the states through the 14th Amendments Privileges and Immunities Clause. So it might require a different analysis than the dual-track approach used here

      1. I don’t think that is correct. McDonald incorporated the 2A through the Due Process Clause, even though Thomas wanted it through the Privilege and Immunities Clause, as did McDonald et al. did too.

        Scalia joked during oral arguments that the lead attorney, Gura, was aiming for a faculty spot for making a case for P&I clause.

        1. I guess it depends on which rationale you think is narrower. Look at the votes in McDonald again. Due process incorporation got 4 votes, no incorporation got 4 votes. Thomas concurred in the result, as well as some sections on Alito’s opinion. But, he did not concur with the DP incorporation section.

          I would argue that the P and I clause is a more narrow grounds than the DP clause for incorporation. Given that the opinion in the case was a pluarlity, the narrowest ground prevails.

          Who knew Thomas was single-handedly crafting jurisprudence as a justice of one. Cheers to him for winning the game.

          1. I suppose to be fair one could take the Gorsuch, Breyer, Ginsburg rationale and say that McDonald does not even constitute precedent. Only 4 justices could agree that the Due Process Clause incorporated the 2nd Amendment onto the states. A 5th justice (Thomas) concurred in the result, but under a completely different rationale, one that “the Court” has long rejected. Since it is the ratio decidendi that allows the decision to have life and effect in the disposition of future cases, an opinion in which no majority agrees in the rationale can have no controlling force in future cases.

            So, the 2nd Amendment is actually not incorporated against the states, despite popular opinion to the contrary. Cheers to Gorsuch then for throwing constitutional jurisprudence into chaos!

            1. I’m pretty sure that’s not how that works, and legal summaries by others are quite clear that it was the Due Process Claus. These last two comments are like your namesake.

              1. I assume those legal summaries you are referring to were written prior to the Court’s opinion in Ramos. Prior to that opinion, I would have been in agreement with what you are saying. You can certainly continue making the traditional argument that a less-than-majority group of justices can establish precedent and overrule prior precedent. That argument is nice and clean, since it doesn’t require delving into the lack of agreement in a large number of what are termed, “the opinion of the court.” It is much more difficult identifying the voting blocs for each section of an opinion, as well as what is being said in each section. When the Court decides cases via a modified seriatim, identifying a single rationale is quite difficult.

                Alito recognized the implications of Gorsuch’s opinion in Ramos when he wrote, “But many important decisions currently regarded as precedents were decided without an opinion of the Court. Does the majority mean to suggest that all such precedents are fair game?” (p. 13). The internal footnote cites 12 cases, including McDonald.

                I’m just pointing out the implications of what was written in Ramos regarding plurality opinions, or opinions where some sections have a majority and others do not, but the opinion itself is treated as “the opinion of the Court.” The fact that three justices appear ready to entertain the argument that these are not actually precedents, seems pretty significant. More specifically to McDonald, your argument lacks any acknowledgement of Marks, and simply accepts that a 4-justice plurality dictates the rationale of the court. It avoids grappling with the difficult questions implicated by Ramos and Marks, questions that I believe are going to resurface in future cases addressing the Court’s plurality precedents.

                But what do I know, my argument isn’t derived from the legal summaries of non-jurists.

              2. What do you know? Well, you were initially wrong about which clause, that much is for sure, but if we are going to be jerks about it to each other, you could have simply said you were applying that recent decision retroactively and engaging in rampant speculation and avoided confusion on my part. My apologies for sounding harsher than I should have been though.

                That said, I only skimmed those posts on Ramos that came out recently. Ultimately, the Court doesn’t need any justification to overturn itself, that’s just backwashed reasoning.

                1. I’m auditioning for a position on the Court, where being a jerk to everyone else articulating a different view is a requirement.

                  For that reason, I respectfully dissent.

    2. There is some debate on whether the 2A was an “individual” right at the time of the Founding or a collective right to a militia. Heller and originalists had to lean quite heavily on state constitutional amendments like PA’s form 1790 that said “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.” They essentially said that it is both an individual and collective right.

      Based on many contemporaneous writings of the Civil War era, the culture, to put it in a living consitituionalist approach, had shifted so the militia wasn’t anybody’s concern, but it was for individuals and keeping arms. For instance, in Dred Scot, Chief Justice Taney said that if blacks were citizens, they could keep and bear arms wherever they went, and he was trying to prevent that. Such a decision would only make sense from the perspective of the 2A being understood as an individual right.

      1. Good point – what would be the point of the 14th Amendment if it didn’t at least overthrow the Dred Scott opinion and enact Taney’s “parade of horribles”?

      2. Sure, if you think persisting in making absurd claims without historical warrant qualifies as a “debate”, no. I thought we put that to rest along with Michael Bellisiles’ career as a top-tier university professor.

        1. It’s not an absurd claim to say that the 2A protected only a collective right to a state militia; it was the belief of 4 justices on the Supreme Court when Heller and McDonald were decided and still is today.

          Note, I didn’t said I agreed with the premise that the 2A was only a collective right, I just said that there was some debate about the matter (there was, and is!).

          It’s also correct to say that those who said it was an individual right had to lean heavily on contemporaneous state constitutional amendments that said it was an individual right at the time of the Founding…which they did if you’ve ever read the Heller decision.

          Sheesh, I didn’t take sides but described history and the current state of things. And if I’m not making Bellisles claims about low rates of gun ownership, which I never would, then don’t associate me with his poor scholarship. That’s just insulting.

          Pull your head out friend.

          1. “It’s not an absurd claim to say that the 2A protected only a collective right to a state militia; it was the belief of 4 justices on the Supreme Court when Heller and McDonald were decided and still is today.”

            That doesn’t mean it’s not an absurd claim. It just means that 4 of the justices are willing to make an absurd claim, if that’s the only way they can find to rationalize deep sixing a right they don’t like. What was the alternative? “Just because”?

            “It’s also correct to say that those who said it was an individual right had to lean heavily on contemporaneous state constitutional amendments that said it was an individual right at the time of the Founding…which they did if you’ve ever read the Heller decision.”

            Oh, dear: They leaned heavily on the evidence. I mean, who does something like THAT if they’re really right?

            1. Even though we are on the same side on this issue, you’re being an ass. If four Supreme Court justices make a legal claim, one should take it seriously, even if one disagrees with it. They are the justices, after all. Taking it seriously, not just calling it “absurd” means you do the homework to obtain the evidence to refute them and show that they are wrong. Which is what I said Gura et al. did, eh?

              Dismissing as “absurd” the pablum of the left and not refuting it (even if it gets tedious) is a recipe for disaster in the culture war.

              1. ” If four Supreme Court justices make a legal claim, one should take it seriously, even if one disagrees with it.”

                I take it seriously. But as a threat, not an argument.

                “Taking it seriously, not just calling it “absurd” means you do the homework to obtain the evidence to refute them and show that they are wrong. Which is what I said Gura et al. did, eh?”

                I’ve been a 2nd amendment activist most of my life. I’ve got a library of 2nd amendment source materials, I’m familiar with the literature. And I say the minority opinion in Heller was a bad joke.

                They were determined to defend a position that was indefensible on the merits, so there wasn’t any way for the minority opinion to NOT be a bad joke. Sometimes you’re stuck with bad arguments, because you’re committed to a position for which there aren’t any good arguments. That was where they found themselves.

                And I say that while believing the majority decision in Heller wasn’t exactly a gem, either.

                Note, when I say the minority opinion was a bad joke, I do NOT mean that the minority Justices are stupid, or poorly educated, or anything like that. They’re all brilliant jurists.

                But they’re brilliant jurists committed for ideological reasons to defending a position which just happens to be wrong, and being wrong, there aren’t any good arguments for it.

                If you’re defending a position for which there aren’t any good arguments, you’re stuck, perforce, with bad arguments.

      3. We need to remember that the bill of rights was written as a restriction placed on the federal government, for the benefit of both the States and the People.

        The states protected the individual rights of free men to keep and bear arms for personal protection, and also for the defense of the state in the form of a militia. These are separate things.

        The State militias depending upon the People being armed.

        The 2nd amendment was a restriction on the Feds to prevent them from indirectly disarming the militia by disarming the people.

        Read that way, there’s no logical reason a State couldn’t restrict ownership of “Militia” weapons. But they wouldn’t be allowed to restrict personal defense weapons, as that is a privilege of citizenship.

        I don’t see any logical reason why a State constitution would necessarily be expected to protect a Citizen’s right to foment rebellion against the State itself. The Federal constitution is a different matter, and should be read as protecting the military independence of the States. The fact that the States have largely abandoned this is on the States.

      4. “For instance, in Dred Scot, Chief Justice Taney said that if blacks were citizens, they could keep and bear arms wherever they went…”

        It’s an even stronger argument. Taney spoke of freedom of movement, free speech, and rkba specifically in the context of the privileges and immunities of citizens:

        “For if they were so received, and entitled to the privileges and immunities of citizens, … it would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport…and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

        The Constitution was amended to sat that blacks were indeed citizens and entitled to privileges and immunities of citizens specifically to overturn this. It’s perfectly reasonable to think that these were the privileges and immunites that were being protected.

        1. The main crafter of the 14th Amendment used the Privileges and immunities language specifically to overrule Dred Scott I had read at some point.

          So the post Civil War Supreme Court, which didn’t want to give blacks full rights, basically wrote out the P&I clause in the Slaughterhouse and U.S. v. Cruikshank. When the Supreme Court, which didn’t want to overturn precedent, began incorporating the Bill of Rights to states in the 20th Century starting with the 1st amendment, they did so with the Due Process clause instead, wrongly as many think.

          1. The main crafter of the 14th Amendment used the Privileges and immunities language specifically to overrule Dred Scott I had read at some point.

            I don’t know about the Dred Scott aspect, but the rest is true. The debates in Congress and the media all revolved and Privileges and Immunities. Slaughterhouse is as big an abomination as Dred Scott.

    3. It seems to me you’re saying the feds get to decide how much infringement is allowed and the states can’t go past that – which doesn’t seem right.

      The Supreme Court has the final say on both if a policy/law infringes on 2A – not the Leg/Exec.

      1. The Supreme Court does not have the final say, it’s been overruled plenty of times, or it’s been forced to reverse itself in a short period of time, like when it said that paper money wasn’t legal tender and then in short order said it was. To your point, though, it doesn’t happen unless there is real backlash against the Court.

        1. It’s kind of like my marriage. I get the final say, but only so long as I know when not to say it.

  2. This idea of multiple tracks does not seem appealing. It sounds excessively complicated (and the law is complicated enough as it is) and I am not seeing what is gained, except confusion.

    Also, it presupposed a level of objectivity not really existing with respect to the precise scope of rights in either 1791 or 1868. Can we really say that the understanding of the 2nd Amendment was different in 1791 than 1868 in an objective way? Based on what authoritative source? If we are going to say that Supreme Court precedent was authoritative in pushing us to a new understanding between the two dates, such that the 14th Amendment fixes the new meaning, why would it make sense to backtrack to an earlier understanding for the federal government? If, on the other hand, changes in understanding were not authoritative, that would be an argument that the 1791 understanding, not the 1868 understanding should bind the states. Either way, the same meaning should bind both the states and the federal government.

    Also, I think the idea that everything is frozen into place 1791 or 1868 does not seem to respect how these rights came to be in the first place.

    To the extent that the rights in the Bill of Rights can be traced to English court cases, well, you have a period before these court cases when the right was “discovered” and before which the right did not effectively exist or was at least not acknowledged. I am not sure why we should move away from that practice of discovering rights. The Constitution never said that we would move away it. If anything, the 9th Amendment seems to imply that we shouldn’t move away from it.

    I think we should have just one Bill of Rights, not two (which is what a dual track approach implies). That does not mean that constitutional rights are the same in every jurisdiction. The meaning of the state constitutions may rightly be different, even if they use the same language as the federal Constitution.

    Also, if you think that incorporation should be thought of as arising from the Privileges or Immunities clause rather than due process, there is a textual argument against dual-track thinking. Namely, the word “the” in “the privileges or immunities” in 14A s1.

  3. What would be some examples of rights being different under the dual-track approach. Jury unanimity isn’t an example, so what is?

    1. My comment is above, but I would argue that the right to personal self defense in inherent at both the State and Federal level, but the right to Militia weapons might be protected at the Federal level, but not at the State level.

      So a State could ban assault rifles, or automatic weapons, or cannons, but the Feds could NOT.

      Obviously that is not how the legal precedents played out.

  4. Law prof navel gazing. The 14th text does not support incorporation at all so what does it matter if its direct or indirect or duel track or whatever.

    Incorporation is a mere judicial power grab that no doctrine can pretty up.

    1. Well, I’m not so sure. I mean, I used to think along those lines, but all the discussion of Privileges and Immunities got me to reconsider…Privileges and Immunities should mean something substantive, something going beyond due process and equal protection (which are separately listed in the 14th).

      Accepting the premise from the Slaughterhouse decision that the 14th Amendment refers to the privileges and immunities of U. S. citizens *as such,* not to the rights of state citizenship (covered in the Comity Clause), then what rights do U. S. citizens, *qua* citizens, possess?

      What, at the time, were the recognized rights of American citizens, even if pre-14th amendment not all these rights were given federal protection vis a vis the states – after all, this lack of federal protection was an omission which the 14th Amendment was supposedly designed to correct.

      Taney gives some evidence in his parade of horribles passage, saying blacks can’t be citizens because if they were they’d have the right to bear arms.

      The need for federal protection, as the adopters of the 14th Amendment understood it, applied not so much to Northern whites (who were already largely protected by their states) as to nonwhites generally (ex-slaves in particular), and white Southern unionists. What civil rights were nonwhites and white unionists being denied?

      1. …and what rights of theirs would be at risk in a state taken over by ex-Confederates?

      2. What exactly is a “Privilege” and what exactly is an “Immunity”? How do they differ from each other? How do they differ from a “right”?

        Give examples.

        1. I’m not going to pretend I can answer all the questions which have caused the pouring of oceans of ink. I know they mean *something,* but not *anything we want.* Within these limits, I can at least say that it’s more than travel on interstate waterways, and it’s less than “any shiny new ‘right’ which catches the attention of academics” (as Scalia seemed to see it).

          It helps that there are actual American legal texts listing what rights belong to the people. If these aren’t P&I then what are?

        2. A “privilege” is something you’re entitled to do, and an “immunity” is something that can’t be done to you. Both are “rights”.

          Examples of “privileges” would be freedom of travel, freedom of speech or religion, the right to keep and bear arms.

          An example of an “immunity” would be something like the right to be free from unreasonable searches. Or the right not to have your property taken without compensation. These aren’t things you do, they’re things the government can’t do to YOU.

    2. But didn’t Congressman Bingham intend that the 14th Amendment protect the rights enumerated in the Bill of Rights from state encroachment?

      1. Such was his view. And from the standpoint of original public meaning, it’s relevant because Northern newspapers and politicians debated the 14th Amendment along with other Reconstruction issues in the election of 1866, coming as close as we’re going to get in showing what Northern voters thought they were approving when they elected the Republicans to Congress on a platform which included reconstructing the states with the 14th Amendment.

      2. Technically, he considered them just a starting point.

        “It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. — It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. Indeed, if my recollection serves rap, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a ease adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield vs. Coryell, . . . Judge Washington says:

        “The next question is whether this act infringes that section of the Constitution which declares that ‘the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’ The inquiry -what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are In their nature fundamental, which belong of right to the citizens of all free Governments and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate. They may,however, be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of the citizen of one State to pas through or to reside In any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal, and an exemption from higher taxes or impositions than are paid by the other citizens of the State, maybe mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental, to which may be added the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”‘

        Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.”

    3. Law prof navel gazing. The 14th text does not support incorporation at all so what does it matter if its direct or indirect or duel track or whatever.

      That’s not what Bingham (Drink!) said.

  5. I’m calling shenanigans on the “‘watered-down, subjective version of the individual guarantees of the Bill of Rights” quote.

    In Malloy v. Hogan Brennan, writing the opinion of the Court (5 justices), wrote: “The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a “watered-down, subjective version of the individual guarantees of the Bill of Rights,” Ohio ex rel. Eaton v. Price, 364 U.S. 263, 275 (dissenting opinion).”

    There is a clear problem here with Brennan’s use of the term “The Court” and his citation to a dissenting opinion. To my knowledge, a dissent is not, when it is written, the language of “the Court.” A dissent may certainly become the position of the Court in a later case, but it is incorrect to say it was the position of the Court when it was written.

    But, things get even weirder when you go to Ohio ex rel. Eaton v. Price. That case resulted in a per curiam opinion that said, simply, “The judgment is affirmed by an equally divided Court” (Stewart taking no part in the case). Brennan wrote an opinion in the case that was agreed to by the Chief Justice, Black, and Douglas. In the opening paragraph he acknowledges that, in the event of an equally divided court, “the judgment is without force as precedent” (p. 264). He then continues to write an opinion for the four justices, within which he writes his “watered-down version” claim for the first time.

    It is that claim that Brennan, writing for a majority, then cites in Malloy, stating that it was what “the Court” said in Ohio ex rel. Eaton v. Price. Clearly, “the Court” never actually said that in Ohio. And, the opinion of the 4 justices in Ohio had no precedential value. Now, the “myth” of the watered-down claim has resurfaced in Gorsuch’s opinion, an opinion that simultaneously seeks to tease out what can and cannot be used from plurality opinions.

    I can’t even with this Court!

  6. For instance, it’s debatable to what extent the right to keep and bear arms was understood as a right of self-defense at the Founding, but pretty clear that it was so understood during Reconstruction.

    Okay, citing the historical record, please show the clarity. For instance, distinguish a right of personal self-defense from the more militia-like notion that blacks had a right to arm to protect themselves against white mobs. And then show that distinction with historical citations.

    And while you are doing your citing, please stick to historical standards—which means prioritize and privilege citations from the authors of the 14A. Please do not cite from every convenient reference you can cherry-pick throughout society, while ignoring every quotation to the contrary an opponent would cherry-pick.

    WB, you could be right on the history, but I doubt you have any historically supportable notion whether you are right, let alone have clarity. I am not versed in the history of Reconstruction-era self-defense. So I do not suppose I know anything much about Reconstruction-era gun history. I have noted the various presentations gun advocates have authored and bruited on this blog. Those are not historically convincing.

    So prove me wrong, but do it with historically convincing sources from authors with professional historical reputations to protect. Perhaps that has already been done, and all you have to do is point me to it. But no gun-advocate authors, please. Instead, find a professional historian who writes on the era generally, who also took note of your topic. For instance, what does Eric Foner have to say?

    By the way, I do think it is plausible to presume self-defense as a right was a better supported notion circa 1875, than it had been circa 1791. But if the study of history teaches anything, it teaches that plausibility is not even slightly a substitute for studying the historical record. Too often—almost always, actually—what folks now consider plausible about the past turns out to be at variance with what actually happened.

    Today’s plausibility is a product of today’s thinking. Today’s thinking is something people in the more-distant past had no access to. People in the distant past almost never thought exactly what we think, about anything, because they had zero access to their future—all the occurrences, discoveries, moral changes, and happenstance destined to occur later for them—but which lie now in our formative past. What has been formative for us was less than irrelevant to them. It was completely undreamed of.

    They did not think the way we do, because that was impossible—just as it is impossible for us even to suppose we can think the way people 100 years hence will think. That is why when someone educated in the present ventures to assay the past on the basis of plausible-sounding presumptions—instead of on the basis of the historical record—the usual result is error or misinterpretation.

    1. Barrels of ink have been spilled on this issue, it’s out there if you look (not very far) for it.

      Here is a good debate on the subject put on by the National Constitution Center between two of the brightest minds on both sides. https://www.youtube.com/watch?v=sZyAgJ_u1i8

      Or just look upthread.

      1. mad_kalak, okay, so I looked again upthread, and again found nothing that addresses what I wrote. Before I watch an hour-and-half of two lawyers saying something, please tell me how what they say will address my own contention—which involved a need to reference actual history in any supposedly originalist argument. Do these two lawyers actually cite professional historians, or just cite gun advocates, or what?

        Are you a lawyer, by the way? There seems to be something about legal education which makes lawyers almost impervious to history. Possibly it is the demand history makes on everyone who wants to learn from it, that they suspend all expectations on beginning study, and instead learn the past on its own terms. Lawyers seem to have a blind spot for any demand that suggests they cannot quickly become expert in whatever discipline comes their way. With history, nobody can do that.

        And for some reason, lawyers rarely show up in history study. During my history graduate study, I met a mid-career military man, but no lawyers. When originalist symposiums get announced on these threads, I make it a point to check the CVs of leading participants, and almost never find history expertise among them.

        What makes lawyers think they can invent originalism without need of historical expertise? Scalia did not seem to know that historical expertise even existed.

        I have never met a lawyer who seemed to have any notion that just as legal thinking is defined by professional norms, making it meaningful to say someone, “thinks like a lawyer,” so too is historical thinking defined, making it possible to “think like a historian.” I do not claim to have much knowledge of what it means to think like a lawyer, so I try to steer clear of arguing legal points on legal merits. I have never met a lawyer who had any sense of self-constraint about asserting historical points, whether or not they were nonsense. That puzzles me.

        1. You’re preening and being ridiculous…you expect a term paper in a blog comment. Again, barrels of ink have been spilled on both sides on this issue in both legal and historical research, and I linked to a non-partisan townhall debate by the National Constitution Society with perhaps the most prominent voices on both sides of the “meaning of the 2A” debate. Surely, a man of your historical research skill can use that as a jumping off point.

          1. I was trained in historical methods. I am not a historian. I need all the help I can get from folks purporting to offer me history, while they try to prove a point about today—something a trained historian would be unlikely to consider trying to do.

            Your “most prominent voices on both sides” seem to be lawyers. I was asking if you could show that either of them offers historical skills as well. Apparently, you have no answer.

            That is exactly what I have learned to expect from would-be originalists. They are unqualified to do the things they purport to do, and they don’t like to be asked about it.

            Also, you did not answer my simplest question. Are you a lawyer?

            1. For someone who is supposed to have been trained in historical methods, while still not a historian, you’re reading into my words things that I didn’t write. That’s faulty historical research, btw. I said “a man of your historical research skills” but note that I didn’t call you a historian.

              Am I a lawyer? After years commenting on this blog in tandem with you, and expressing my ignorance where appropriate about certain legal minutia, I would have figured a man of your historical research skill would be able to come to the conclusion that I am not a lawyer, but an academic/professional of a different discipline. One that makes plenty of use of historical analysis btw, without the preening you engage in.

              Your comments when you drone on about historical research sound like the worst aspects any of the “quant” vs. “qual” tastes great/less filling debates I’ve ever had the misfortune to engage in.

              Look, lawyers are like plumbers, you call them to fix a leak, but I don’t ask them to give me this history of indoor plumbing. That said, a law professor who does historical research picks up the skills the same way, for example, a sociologist or anthropologist can do political science or an economist can do political economy, and so on.

              1. That said, a law professor who does historical research picks up the skills the same way, for example, a sociologist or anthropologist can do political science or an economist can do political economy, and so on.

                mad_kalak, I tend to agree with that. In a way, that has been my point. I would be delighted to meet a law professor, “who does historical research,” and does so to the extent necessary to, “pick up,” what is necessary to proclaim himself an, “originalist.” Problem is, I can’t find one.

                Do you suppose there are lawyers who, “pick up,” medical expertise, to the extent that they argue medical malpractice cases on the basis of their own say-so, without use of expert witnesses? There are lawyers with MD degrees, and as far as I know, even they do not attempt that.

                Yet you suggest that in the comparably exacting professional field of history, lawyers can easily pull off what they dare not attempt in medicine? Why would you say that? Maybe because you have little idea what historical expertise is and does, and have discounted it to the status of everyday research.

                Of course, there is no shortage of law office historians, who cherry-pick citations from the past, without in the slightest attempting to do the research necessary to put their nuggets in context—or in egregious instances, even to understand the language used.

                If there were a reliable way to decide the question, I would bet money that most of the nation’s law professors misunderstand the meaning of “proper,” in John Marshal’s discussion of the Necessary and Proper clause. Lawyers commonly relate the word to propriety, when Marshall meant something closer to, “efficacious,” or “necessary and sufficient.” I have seen, “proper,” misunderstood in that way by Professor Randy Barnett on this blog. I have never seen evidence from any of the other law professor bloggers here that they know better than Barnett. Among the commenters here—many of them lawyers—I have not seen evidence that even one of them has been taught the difference. They, too, seem to believe that when Marshall said, “proper,” he meant to constrain congressional power with some vague notion of propriety—despite the fact that Marshall himself said explicitly that his word meant an expansion of power, not a constraint. That points to a notable lack of historical insight among the law professors who taught these lawyer commenters. It is especially notable, because it tends not just to blur Marshall’s meaning on one of the most crucial questions of American law, but to reverse it.

                The inconvenient fact is that with history the, “research necessary,” cannot be subject-specific. With history, you cannot just dip into an index—not even an index of archived original sources—find the topic you want, and start mining relevance. Doing it that way is the empowering ambition behind the new lawyers’ vogue for “corpus linguistics.” It doesn’t work that way. In the hands of lawyers, corpus linguistics will prove to be a convenient, automated way to make historical mistakes faster.

                Insight into historical relevance comes from understanding not just the topic, but instead from understanding the place, the period, the contemporary issues, and through those prior understandings, understanding the language in the historical record. And doing that requires not just a research paper, or even a dissertation, but many years of continuous study—study inevitably touching mostly on sources far afield from every particular subject of legal historical interest.

                To illustrate, let me suggest a thought experiment. Would you like to become one of the world’s experts in founding-era originalist meaning? You could accomplish that just by reading and studying one archive—the papers of Benjamin Franklin. That would be far from sufficient to equip you with encyclopedic knowledge of that time, or of the other founders, but it would certainly make you a formidable, world-leading expert on the period. Problem is, getting it done would require your entire professional career. When it is finally completely curated, the Franklin archive is projected to reach 47 volumes, all of it extraordinarily rich in cross-references to issues, events, places, and other people.

                Law professors apparently judge that sort of thing an inefficient use of their time. Few if any of them try it, not even on a far more limited scale than studying the Franklin archive would require. But an ever-increasing cohort not just of law professors, but also of practicing lawyers, proudly proclaim themselves originalists, as if they had done it.

                Approaching it that way abandons the claims to constraint by history which would-be originalists tout as justification for their project. It instead frees the legal profession to make up from whole cloth a new canon of purported historical truth, unconstrained by actual history. With time, that newly-invented canon could notionally become as constraining as the lawyers touting it claim it will be. But it will have nothing to do with history, and thus nothing to prevent its continuous modification on the same principles used by the lawyers who are setting it up.

                Because you are not a lawyer, I have a hard time understanding why you suppose doing law that way could advantage you.

                1. TLDR

                  In short, historical research is nothing special, as is done poorly, or well, by historians, journalists, political scientists, law professors, sociologists, etc. etc.

        2. I do not claim to have much knowledge of what it means to think like a lawyer, so I try to steer clear of arguing legal points on legal merits.

          It would not take a professional historian to look over the history of your comments on the VC to prove how laughably false this claim is.

          1. Nieporent, one thing I have noticed repeatedly on this blog is that lawyers who are constrained to be forthright in their legal briefs are often notably less so when they address non-lawyers. That is lawyers’ arrogance. It is not a good look.

    2. If you have a chance to read the briefs in Presser v. Illinois, I highly recommend them for the insight they provide into the Second Amendment. The Cruikshank briefs are less helpful, since the government’s brief provides no discussion of the Second Amendment. Briefs for the defendants deny that the Second Amendment protects any sort of individual liberty, but the defendants are of course looking to escape conviction in that case. Presser’s argument is more nuanced though, and definitely more substantive in the historical argument, and I am less apt to class it in the same category as the Cruikshank defendants.

      Starting on pg. 33, counsel for Presser writes:

      This [the right to bear arms] is an inherited, and traditionary right, guaranteed, also, by State and Federal Constitutions. But it extends no farther, than to keep and bear those arms, which are suited and proper, for the general defense, of the community, against invasion and oppression, and it does not include, the carrying of such weapons, as are especially suited, for deadly individual encounters. Therefore, the state laws which forbid, the carrying of such weapons, concealed, are no invasion of the rights of citizenship.”[**] Cooley on Torts, 301. This passage clearly defines the right of the people to bear arms, as one to be exercised in their collective, no less than in their individual capacity, and is descriptive, as one of the “arms”, intended by the Constitution, and of the uses to which, they may be constitutionally put.

      “To bear arms”, then, in the constitutional sense, means to bear the weapons of civilized warfare, and to become instructed in their use. But this is drilling, officering, organizing; therefore, these are claimed to be part and parcel, of the same impregnable right, and placed by the supreme law of the land, beyond the reach of infringement by the provisions of any military code or, the precarious will, and license of whoever may happen to be Governor.

      There being no clause in our State Constitution [Illinois constitution of 1818], coupling the advantages of a well-regulated militia, with the right to bear arms; it is denied, that that right can be even plausibly, circumscribed to the bare needs, of such an institution. On the contrary, an unconditioned and undeniable right is claimed, militia or no militia.

      **There is no beginning quotation mark in the brief, so I do not know if the entire paragraph is from Cooley on Torts or just the last sentence of the paragraph.

      1. QuantumBoxCat, I see by the dotted line that your comment is meant as a response to mine. Without the dotted line I would not have guessed it. To a historian (although not a historian, I was taught how to think like one) your remarks and citations look like legal arguments. They belong to the field of law, where I am sure they serve the needs of judges and litigators.

        Perhaps you are unaware that historians regard legal arguments as suspect evidence for historical purposes. Legal outcomes—as opposed to arguments—are regarded as useful sometimes, especially to illustrate how court decisions illustrate inconsistencies between legal texts and social norms. Historians long ago learned not to take the laws themselves at face value—which I suppose is something most lawyers also learn—but which they seem duty-bound to pretend in public not to have learned.

        To a historian the outcomes of cases tell almost nothing reliable about the thinking of the people who wrote the laws the cases rely upon. To suppose otherwise is generally an offense against historical methods, which put reliance on avoiding the error of numbering among causes the later effects which ensue from the causes. Historians, more than most folks, become conscious that things which happen tomorrow are not usually to be found among the causes or explanations for things which we choose to do today. People’s intentions for tomorrow are of great interest to historians, but mainly insofar as they can be determined as intentions, and not confused with outcomes. Historians prize the lessons to be learned by distinguishing intentions from outcomes, evaluating the differences, and discovering causes for the divergences. All of that requires reliance on time’s arrow to point forward, never backward.

        It seems to me that lawyers approach that problem otherwise. Respect for precedent comes to color interpretations of legislative meaning. In that kind of thinking, what judges decide today thus becomes tomorrow to seem like an explanation of the law the legislature passed yesterday. Legal training inculcates that kind of thinking as a matter of habit.

        However well that may work for legal purposes, for historians it is mind boggling. They tend to insist that effects cannot contribute much to explain causes. Instead, historians look for the causes of today’s actions (or enactments) in yesterday’s record. When looking for the cause of a law, yesterday’s record cannot be the legal record—laid down as it always is, post-enactments—but instead the non-legal historical record, which can be read as far back before an enactment—or before any historical occurrence—as seems convenient or necessary.

        For historians, the law has its beginnings in events outside the law—events experienced before the law’s enactments, and especially during considerations by historical persons of what to do about events. If I am not mistaken, legal reasoning has come to regard that kind of thinking as outmoded, unhelpful, and maybe erroneous. Doctrines such as textualism come to mind. Scorn for “legislative intent,” now seems customary.

        Perhaps that tells us something about why lawyers seem almost allergic to seeking from historians professional advice about the past. But if that is so, it leaves historians baffled about how lawyers can go about building any notion of originalism into legal interpretation. Confining yourselves to the legal record assures that all your causes and effects are in a hopeless muddle, with effects taken as explanations of causes more often than not.

        Originalism requires a professionalized method for evaluating the past, which has long existed, but which lawyers and judges seem determined to avoid. Partly, that is because the method necessary is not their expertise, but especially it is because lawyers have learned that such a method cannot be relied upon to deliver the results they prefer—and certainly not results they can control.

        Lawyers claim what they seek from originalism is judicial constraint. Their resistance to relying on historical expertise—which would indeed supply that constraint—says the opposite.

        1. However well that may work for legal purposes, for historians it is mind boggling. They tend to insist that effects cannot contribute much to explain causes.

          Historians, at least as you describe them, don’t seem to be very smart.

          Normal people as well as lawyers realize that the way people interpret words gives us insight into what they meant when they previously said those words, or what they understood when they first heard those words.

  7. It’s possible that incorporation is wrong altogether as a matter of original meaning.

    Funny how we allegedly have all these evil arch-conservative judges, and yet.

    Either way, anyone who favors self-government and liberty should clearly recognize that decentralization is paramount, and that the effect of these doctrines, invented 60 plus years after the 14th amendment which was never even properly ratified in the first place, has been to turn our original Jeffersonian system of government on its head.

    1. “It’s possible that incorporation is wrong altogether as a matter of original meaning.”

      Contingently it’s possible, in the sense that one can imagine a consistent alternate history where that was the case. As a matter of historical fact, the only thing wrong about incorporation is that it came about a century late and through the wrong clause of the 14th amendment.

      1. Brett, Is your position based on the one cherry-picked quote, which you wrongly attributed to Bingham?

        https://lawliberty.org/classic/the-coming-resurrection-of-raoul-berger-a-remembrance-of-government-by-judiciary/

    2. M L, why is it a Jeffersonian system of government, instead of a Madisonian one? Or a Hamiltonian system of government? Or for that matter, pick any other intellectually influential founder. Sometimes, I am inclined to think we have a Ben Franklin/James Wilson system of government, or at least that we would be better off if we thought so.

      1. Stephen
        Jeffersonian because I specified I was speaking to those who favor liberty and self-government.

        Of course all the founders, including the folks you mention, were in agreement on this particular issue. None of them would have dreamt that a federal judiciary presiding over vast geographical areas with different cultures, climates, and people should decide state and local law with one size fits all answers down to the most subjective questions of life and liberty.

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