It is my understanding that living constitutionalism is very close to dead constitutionalism as described by Professor Olson. Popular opinion is not much better a method of changing the Consitution than judges values. If popular opinion is an acceptable means to change the Constitution, then perhaps judges should be able to change it, as they usually reflect popular opinion and the "culture."
Jeanette Burrage
Attorney and Retired Superior Court Judge
Washington State
-----Original Message-----
From: Joseph E. Olson <[email protected]>
To: Firearms Reg, List <[email protected]>
Cc: post_Heller_list <[email protected]>
Sent: Tue, Jan 12, 2010 10:23 am
Subject: New article by Dave Kopel
Cardozo Law Review, de Novo, Forthcoming
U Denver Legal Studies Research Paper No. 09-34
From: Joseph E. Olson <[email protected]>
To: Firearms Reg, List <[email protected]>
Cc: post_Heller_list <[email protected]>
Sent: Tue, Jan 12, 2010 10:23 am
Subject: New article by Dave Kopel
Cardozo Law Review, de Novo, Forthcoming
U Denver Legal Studies Research Paper No. 09-34
DAVID B. KOPEL, Independence Institute, Denver University, Sturm College of Law
Email: [email protected]
Email: [email protected]
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a "dead constitution," judges simply impose their personal values, and nullify parts of the Constitution which they do not like.
When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.
In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.
As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.
>From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a "dead constitution," judges simply impose their personal values, and nullify parts of the Constitution which they do not like.
When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.
In the 20th century, some elements of the legal elite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.
As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.
>From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
*******************************************************************
Professor Joseph Olson, J.D., LL.M. o- 651-523-2142
Hamline University School of Law (MS-D2037) f- 651-523-2236
St. Paul, MN 55113-1235 c- 612-865-7956
[email protected] http://law.hamline.edu/node/784
Hamline University School of Law (MS-D2037) f- 651-523-2236
St. Paul, MN 55113-1235 c- 612-865-7956
[email protected] http://law.hamline.edu/node/784
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Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
- New article by Dave Kopel Joseph E. Olson
- Re: New article by Dave Kopel jburrage01
