Re: Hight Court hears huge 2nd amendment case today
First, for you folks who are talking about legislative intent and that sort of thing, how do you square that with Justice Scalia's (a staunch original intenter) view that legislative history doesn't matter? Not to put too fine a point on it, but that would surely mean that we would not look to margin of victory ever.
When Scalia does not follow the original intent (and he does not always do so), he is not an "original intenter."
I believe legislative history matters. It speaks to intentions of those proposing and ratifying the Constitution and its amendments, and the extent to which they were willing to go. Any legislative act, including an amendment to the Constitution, is the result of some compromises.
Let me provide a simple analogy. A group of folks are living in Boston in October and it is getting cold. Most want to go to a warmer clime and propose moving south for the winter. Some want to go to Baltimore. Others prefer to go on to Charleston. Those with cold blood want to go all the way to Miami. If they have only one car (the analogue to the Constitution in this case), they have to compromise. If the choice is Miami or nothing, the group might just stay in Boston because some simply refuse to go that far. They compromise, however, and decide to go to Charleston. Once they are on the way, for someone to say, "Well, Person X wanted to go to Miami, and we've all agreed to head south, so we have to go all the way to Miami," this would be illegitimate. The group did not agree to go to Miami, only as far as Charleston.
The same applies to the XIV Amendment. Most members of Congress agreed that they needed to stop the southern states from abusing the freedmen, and denying them privileges and immunities of citizenship. What those P&I were was a matter of debate. Everyone agreed that freedmen should at a minimum have the right to testify in court, sit on a jury, bring suit, enter into contracts. Not everyone agreed that they should have the right to vote (which is why they subsequently fixed that with the XV Amendment). Very few agreed that the privileges and immunities were meant to "incorporate" the Bill of Rights (which was originally intended to prevent the
Federal government from interfering with people's rights) and apply the Federal BoR against state action. Even with this narrow listing of the privileges and immunities (testify in court, sit on a jury, etc.), the XIV Amendment was barely ratified (if it really was ratified at all). For the Federal bench now to cite the most extreme members of the Congress that proposed the XIV Amendment (or the judges’ own whims or predilections) is akin to the person in my analogy arguing for gong all the way to Miami. It is illegitimate, in light of the near-run thing that was the adoption of the XIV.
That is why I believe legislative history is important in construing the Constitution. If proposers/legislators at the time had explicitly intended the XIV to incorporate the BoR (i.e. "this amendment is intended to prevent a town from erecting a nativity scene at Christmastime"), it would not have gotten ⅔ of both houses of Congress and ¾ of the states.
Second, at the time the Constitution was written, basically anybody other than white men, predominately of Western European descent, were deprived to one extent or another of what we now commonly recognize as their rights under the Constitution. If you truly believe in the doctrine of original intent, how do you square this?
The white men that drafted, debated and ratified the Constitution (a document we probably agree is a pretty good document) represented "the people of the states," as imperfectly conceived as "the people" were in 1787-1790.
A hundred years from now, people might look at our conception of "the people" and wonder how
we got it so wrong when we, in our view, believe we have gotten it right. Mel Bradford called this "provincialism in time."
