Ian Bartrum on Structural Originalism and the Second Amendment
Michael Ramsey
Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Structural Originalism: A Better Theory of the Second Amendment (65 pages) on SSRN. Here is the abstract:
This article describes and defends an alternative approach to constitutional originalism, and uses this approach to justify a better theory of the Second Amendment. Rather than fixate on the text and hypothesized accounts of original public meanings, it recommends a historical focus on constitutional structure and design. This more holistic use of history asks how the Constitution intended various political institutions to interact when faced with new and unforeseeable policy disputes. It generally does not privilege the normative or ideological judgments of an earlier society but seeks instead to identify the political institutions the Constitution entrusted to make those judgments in a changing world. The Court’s role is thus to preserve the historical structure of substantive political decision-making; not enforce the historical substance itself.
The structural originalist account of the Second Amendment first identifies the relevant natural rights at issue—the right to revolution or political resistance, and the right to private self-defense. The Constitution assigned care of these distinct rights to distinct institutions, each an instantiation of the sovereign People. The constitutional right to revolution fell to the universal militia, while the common-law right to self-defense rested with juries. The original Second Amendment protected the militia’s ability to exercise the right of revolution but left the common law of self-defense untouched. In the years preceding the Civil War, states often regulated arms used in private conflict, and this was not thought to conflict with the constitutional right to bear arms. More radical abolitionists began to push for an “individual” right to revolution, but this was far from the mainstream view when the War began. In the years following the War, Congress enacted legislation and the Fourteenth Amendment to combat ongoing racial subordination in the South. The language of those enactments evinces a clear desire simply to end racial discrimination in state laws, including in the common law of self-defense. Contemporaneous constitutional commentary and the Court’s decision in United State v. Cruikshank confirms the states’ continuing authority to regulate private violence and the scope of common law self-defense-—so long as blacks and whites are treated alike. Structural originalism thus produces a better, common-sense account of the Second and Fourteenth Amendments; one which permits states to regulate self-defense and the weapons of private violence in racially nondiscriminatory ways.