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A Lesson on Originalist Interpretation

There are a few ways to interpret a law or constitutional provision, and one of those ways is originalism. Originalism can generally be decided into two categories. Original intent, which is interpreting according to some divined intent of the founders, is one of those methods, and though largely disfavored now. More favored is the second method, which is original public meaning, which serves to illustrate what people at the time thought the words meant.

For something like the Second Amendment, for which there has been little case law, it’s relatively important to understand what people thought it meant back when the constitution was first adopted, and in the early years of the Republic. That’s why many of the briefs in Heller, and the opinion itself, cited so many sources that were contemporary with the Bill of Rights in order to uncover the how people understood the words at the time of its adoption.

One lefty blogger is rather upset that one of those contemporary sources used is Scott v. Sanford, or the infamous Dred Scott case:

In one of the weirdest aspects of the Second Amendment debate, it has become acceptable to quote Dred Scottas a legitimate constitutional authority. This is one of the most thoroughly discredited cases in Supreme Court history, there is a run up between this case Korematsu v. United States, 323 U.S. 214 (1944) and Buck v. Bell, 274 U.S. 200 (1927) for most disreputable Supreme Court Case. Dred Scott is considered to be the product of an overly ideological and reactionary judge relying on poor scholarship and weak legal reasoning in an effort to shape public policy.

It is in the context of originalism that one small part of Scott is quoted:

It would give to persons of the negro race, who were recognised 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 without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; 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. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

The interest in this passage is not in the value of the ideas presented here, which today we properly recognize today as racist and dreadful, but it tells us that people of the time recognized the right to “keep and carry arms wherever they went” as being within the collection of rights that citizens enjoyed. It tells us that a Supreme Court justice believed that.

Of course, Scott is only a small part of the framework on which the originalist case for the Second Amendment rests. For the rest of it, there probably isn’t any better source now than Heller itself.

More interesting will be the McDonald case, which will rest on the original meaning of the 14th Amendment. There’s a strong possibility the court may finally be looking at overturning US v. Cruikshank, which was another racist and wrongheaded ruling, which gutted the “privileges and immunities” clause of the 14th Amendment, originally intended to protect the civil rights of freed blacks during the Reconstruction Era.

I find it ironic that a lefty blogger who rightfully hates Scott, doesn’t seem to appreciate the opportunity to actually fix a great wrong here with the McDonald case. While Scott was never formally overturned, its holding was essentially rendered moot by the passage of the 13th and 14th Amendments, and isn’t really legally relevant today. But Cruikshank is still valid law, and it’s holding is nearly as racist and disgusting as Scott‘s. It might not have said blacks aren’t citizens, but it at the least said the 14th Amendment didn’t protect any rights they might have had to, you know, not be murdered. Let us hope that the Supreme Court does the right thing and reverses Cruikshank by incorporating the Second Amendment under the Privileges and Immunities clause of the 14th Amendment. I would think that something a lefty could appreciate, even if they don’t much like the Second Amendment.

18 Responses to “A Lesson on Originalist Interpretation”

  1. Sean Sorrentino says:

    I am reminded of the old rule that says you should avoid parodying things like that because your parody will be indistinguishable from the original.

    do you ever wonder if most of the Antis are just Psych majors trying to write class papers on the subject of “How Normal People React to Ignorant Arrogant Jackasses”?

  2. BC says:

    The writer of that site is so earth-shakingly stupid that he thinks Dred Scott is being cited for its precedential value rather than for what it tells us about history. Hence why he imagines that Shepherdizing the decision and pointing out its negative citation history is game, set, and match.

    Justice Scalia’s turds have a greater grasp of the law than this clown.

  3. Carl from Chicago says:

    That blogger on Scott and the 2A is not going for an intellectual argument, but is trying to “guilt by association” the second amendment by referencing to the Scott case.

    “In one of the weirdest aspects of the Second Amendment debate, it has become acceptable to quote Dred Scott as a legitimate constitutional authority.”

    The case was, as Sebastian pointed out, referenced as evidence for an historical understanding of the 2A. Any “alarm” that blogger might generate would disappear under the proper context.

    Sebastian … it seems that your fellow blogger, David Hardy, has published a paper regarding original intent during the 14th amendment period. It will surely be cited by the Supreme Court in McDonald. I know of it because Gura cited it in the briefs for the McDonald case.

    David Hardy, Original Popular Understanding
    of the 14th Amendment as Reflected in the
    Print Media of 1866-68, 30 Whittier L. Rev.
    695 (forthcoming 2009), available at SSRN:
    http://ssrn.com/abstract=1322323

  4. Patrick says:

    Minor nitpick — the 14th amendment contains the phrase “privileges *or* immunities”. The “privileges *and* immunities” clause is something different.

  5. Sean Sorrentino says:

    “it seems that your fellow blogger, David Hardy”

    David Hardy is a lawyer who blogs, not a blogger who lawyers.

    From his “About Me”

    Since then he has handled cases up to the U.S. Supreme Court, and won a death penalty appeal in the Arizona Supreme Court. From 1982 to 1992 he worked in Washington at the Office of the Solicitor, U.S. Department of the Interior, mostly representing the U.S. Fish and Wildlife Service.

    Hardy has five books and thirteen law review articles in print; one of the articles has been cited by the U.S. Supreme Court and eleven of the thirteen U.S. Circuit Courts of Appeals.

  6. Carl from Chicago says:

    Sean:

    Thanks. I know. It’s good that you point this out. I am confident, however, that David would not mind me refering to him as one of Sebastian’s “fellow bloggers.”

    Hardy’s contributions toward the understanding and defense of the Second Amendment are profound.

  7. mikeb302000 says:

    I agree that it’s perfectly acceptable to cite that part of the Dred Scott case which supports the individual right to bear arms.

    I don’t agree that that’s the only interpretation possible of the 2nd Amendment. But, what do I know? I’m a lefty who’s not a lawyer.

  8. Mike w. says:

    Apparently I’m not allowed to cite Dredd Scott…….

    Honestly Sebastian I think she was just greatly offended that I cited the case and she just couldn’t get past the racism angle to understand the point I was trying to make.

    Obviously the portion I cited was mere dicta and as you say the holding was despicable and one of the most racist rulings in SCOTUS history. That doesn’t change the meaning of those words.

    Justice Taney knew exactly which rights Scott would have enjoyed as a person and citizen of this country, and he specifically listed them for us. Yes he said Scott was property and thus had no rights, but he clearly stated that if he were a individual citizen he could “keep & carry arms wherever he went.” That’s pretty clearly supportive of an individual right to arms.

    Laci is merely trying to discredit the citation of Scott without actually addressing the words contained therein.

  9. Ed says:

    Typical of leftists. She hears “Dred Scott,” and all she knows is that she learned in high school something about Dred Scott and slavery and slavery is bad so therefore so is the Dred Scott decision. If the decision was bad, citing it is racist.

    I’m fairly certain that a major point of at least the JPFO’s amicus was that the Nazis banned gun ownership by Jews, and they might even have cited the law so doing. The Nazis have been thoroughly discredited, so that makes the JPFO anti-Semitic using lefty logic.

  10. Weer'd Beard says:

    “I don’t agree that that’s the only interpretation possible of the 2nd Amendment. But, what do I know? I’m a lefty who’s not a lawyer.”

    You forgot unapologetic criminal!

  11. Mikee says:

    I read the whole post by Laci the Dog.

    She uses absolutely horrible racist invective in describing Supreme Court Justices Thomas and Scalia, the type of language that would get her immediately dismissed from places I have worked should she utter it there. The entire blog post by Laci the Dog is an example of someone who apparently never learned that throwing stones in glass houses is a no-no.

    Incidentally, while this post actually quotes the language of the dicta Laci castigates, Laci manages to write an entire blog post decrying the dicta, without actually, you know, quoting it to allow her readers to make an informed judgement.

    I have read both posts, and have made my informed judgement. Laci the Dog has written an idiotic post, marred by her own racism.

  12. Mikee says:

    I read the whole post by Laci the Dog.

    She uses absolutely horrible racist invective in describing Supreme Court Justices Thomas and Scalia, the type of language that would get her immediately dismissed from places I have worked should she utter it there. The entire blog post by Laci the Dog is an example of someone who apparently never learned that throwing stones in glass houses is a no-no, and that a pot should not call kettles, or anyone else, black in a disparaging manner.

    Incidentally, while this post actually quotes the language of the Dred Scot decision Laci castigates, Laci manages to write an entire blog post decrying the dicta, without actually, you know, bothering to quote the dicta. This failure, in my opinion, fails to allow her readers to make an informed judgment.

    I have read both posts, and have made my own informed judgment. Laci the Dog has written an idiotic post, marred by her own racism, illogic and liberalism.

  13. Tom says:

    This is new to anyone? The goodguys have known about this for years and years.

    Give a lib an internets and they’ll find a (new)way to look like an ass.

  14. Carl from Chicago says:

    “Give a lib an internets and they’ll find a (new) way to look like an ass.”

    I don’t mean to point to Tom specifically …

    But I am sometimes discouraged by the way some folks throw around “lib” and “liberal” as if there was some real and discreet category of “liberals.” I suspect that if there is, it only exists in the eye of the beholder, and when it’s emphasized, it is hoped that killing the messenger is just as valid as killing the message. It’s ad hominem … “because s/he is a liberal, I can dismiss anything that person says.”

    Do we want people dismissing our ideas wholesale simply because we could be categoriezed as “gun nuts” or “conservative” or “white males?” I don’t.

  15. Ed says:

    I prefer “leftist” to avoid the issues Carl brings up above. Also, I consider myself a liberal, in the classical sense, and I don’t like that the term has been hijacked by people who believe in inherently anti-liberal things like big government and abolishing various rights for collective ends. They are, however, leftists.

  16. Tom says:

    Point taken, but you have to admit their “owning the language” tactics do usually work. I was just engaging in some Alinskyish behavior there by continuing to use the self identifier as a derogatory term.

    I’d edit to use procto-smotherists instead since that’s where they’re heading. Quite literally with the health_____ reform bill. I suppose the term can also apply to the ignorant masses worshiping their pictures.

  17. DirtCrashr says:

    Lefty tit in the wringer and she’s still pushing on the handle – if the elevator went all the way to the top she’d let go, but she suffers from Cornell Syndrome.
    Incompetent individuals suffer from deficient metacognitive skills, and are less able than their more competent peers to recognize competence when they see it–be it their own or anyone else’s.

  18. j huettl says:

    Just take the time and read Scott. Court rules that are discussed Scott are still in force today. So to say that Scott has no effect when dictum is used from Scott on a case of today is a lot like someone trying to get you to buy that the Bill of Rights are just amendments and have nothing to do with peoples rights.

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