Friday, October 23, 2009

Cramer, Johnson & Mocsary on the Public Meaning of the 2nd Amendment when the 14th Amendment Was Ratified

'This Right is Not Allowed by Governments that are Afraid of the People': The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified has just been posted by Clayton E. Cramer, an independent scholar, Nicholas James Johnson, Fordham University School of Law, and George A. Mocsary, a judicial law clerk.

I'm posting this piece because it engages a variety of historical sources. The line between works of interest to legal historians and advocacy pieces is not always clear, but some readers are engaged in the "public meaning" turn of originalist scholarship, so I will occasionally post such pieces. What you will not see on this blog, however, are works that purport to engage in "original public meaning" analysis, but support their arguments only with a New York Times database search, or other limited engagement of sources. "Original public meaning" should be approached as a form of intellectual history, and practitioners of this form of scholarship should draw upon the conventions of the field of intellectual history. No intellectual historian would limit her/himself to one source. A reading of historical newspapers might inform an analysis of the history of the press. But for broader claims about what the "public" thought on a particular topic, deeper work is, of course, needed.

Here's the Clayton, Johnson and Mocsary abstract:
If the Fourteenth Amendment is found to incorporate the Second Amendment against the states, what meaning of the Second Amendment does it include? This paper examines judicial and popular understandings of the Second Amendment in the period between ratification of the Bill of Rights and the Fourteenth Amendment.