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Tuesday, January 08, 2013

Law - "What Gun Regulations Will the Supreme Court Allow?"

Michael C. Dorf, a Justia columnist and the Robert S. Stevens Professor of Law at Cornell University Law School, has a fascinating Jan 2nd article, "Originalism and the Second Amendment," that is Part Two of a two-part series, "What Gun Regulations Will the Supreme Court Allow?" A few quotes:

So-called “old” originalists construe the Constitution in accordance with original intent. Does the Eighth Amendment’s Cruel and Unusual Punishments Clause permit capital punishment? An old originalist asks whether the framers intended it to forbid the death penalty. Does the Commerce Clause permit Congress to require people to purchase health insurance? An old originalist asks whether the framers intended to authorize mandates.

Old originalism retains considerable force among politicians, some judges, and the general public, but these days, most scholars who call themselves originalists reject it, because critics of old originalism have successfully argued that it is flawed in various ways, including these two: (1) because constitutional change is usually the product of contentious political disagreement, it will often be impossible to locate a determinate intent that was shared by all, or even a majority, of the people who were responsible for adopting any given provision; and (2) the framers and ratifiers of the Constitution enacted language, not whatever intentions or expectations they may have had for that language, so even when a generally-shared intent can be identified, basic principles of legality point away from giving effect to that intent, apart from the meaning of the language.

Accordingly, “new” originalists argue that a modern interpreter should give effect to the original meaning of the words that the framers and ratifiers adopted, but disregard their additional intentions and expectations. * * *

Most constitutional scholars (myself included) believe that new originalism avoids some of the worst pitfalls of old originalism, but it is not clear that new originalism differs in any substantial way from living constitutionalism. * * *

[N]ew originalism leaves modern readers of the Constitution with nearly the same amount of room to maneuver as do more conventional versions of living constitutionalism.

Posted by Marcia Oddi on January 8, 2013 10:12 AM
Posted to General Law Related