Ah, Saul Cornell.Meet the new boss, hell of a lot better looking than the old boss.
HELLER, NEW ORIGINALISM, AND LAW OFFICE HISTORY: “MEET THE NEW BOSS, SAME AS THE OLD BOSS” * Saul Cornell
Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller SAUL CORNELL*
III. ORIGINALISM V. HISTORY
The goals of the historian and judge are different. It is not reasonable to expect judges and their clerks to produce professional quality history in their opinions.60 It is not unreasonable, however, to demand that judges not play fast and loose with history. The choice is not between law-office history and professional history, but rather between history wrong or history right. 61 Thus, if one claims to be employing originalism, one ought to pay more attention to the Founding-Era's own interpretive practices and less to modem language philosophy. One must apply the Founders' interpretive rules uniformly.62
CORNELL'S OVERALL CONCLUSION : the MacDonald decision was mistaken, historically.
The pro-gun rights version of American constitutional history is resolutely ahistorical. Rather than try to understand what the Second Amendment meant to Americans in the past, it tries to make historical texts choose sides in contemporary debates over gun control.
The great difficulty in interpreting the meaning of the right to bear arms is not that technology has changed, but rather that the political and constitutional assumptions at the root of the Second Amendment have changed. Justice Scalia and gun rights advocates believe that the Second Amendment protects an individual right that facilitates the possibility of a well-regulated militia.
The Founders and many Americans during the era of the Fourteenth Amendment saw it in reverse. To have a well regulated militia, it was necessary to have a population that was well armed, well trained, and most importantly, well regulated. The Founders understood the difference between an armed mob and a well-regulated militia, and this distinction remained important during Reconstruction, when paramilitary groups such as the KKK embarked on a campaign of terror throughout much of the Reconstructed South.
Last edited by a moderator: