From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Leonard Levy, "Original Intent", etc.
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Tue, 6 Oct 1992 15:24:35 GMT

In article <1992Oct5.221030.22369@murdoch.acc.Virginia.EDU> clc5q@hemlock.cs.Virginia.EDU (Clark L. Coleman) writes:

>What did the American public think of the Second Amendment at the time of
>its ratification?  Did they think it protected members of an organized
>militia only, and that the state could decline to organize such a militia
>and render the Second Amendment of no consequence? Or did they understand
>it to protect individuals who might or might not ever be called upon to
>serve actively in a militia?

Well, it should be noted that if the original understanding of the Second
Amendment was *not* to reserve a right to individuals, the word "people"
in the Second Amendment means something far different from the word
"people" in the First Amendment.

>My advice is to read Bork's book. It doesn't take long, and then you will
>have something besides a secondhand caricature to inform your opinions
>about "original understanding."

Even after one has read Bork, one can disagree with him. And Bork does
some caricaturing of his own. 

>If Laurence Tribe, as he testified before the Senate during Robert Bork's
>confirmation hearings, interprets the Bill of Rights in a way that would
>broaden individual rights beyond the original understanding, and lessen
>state power by implication, then may I assume he favors interpreting the
>Second Amendment as broadly as possible in favor of individual rights, and
>as narrowly as possible with respect to state powers?  (Hint: that was a
>rhetorical question.)

Not all those who opposed Bork share all of Tribe's jurisprudential views.

>So, tell me, what guidelines should we have if not "original understanding?"
>Whatever "seems right" to 5 Supreme Court justices?

It should be noted that Bork himself departs from "original understanding"
on several issues. When I interviewed Bork in 1988, I asked him about the
cases in which broadcasting content regulation was held Constitutional
(and in particular the Red Lion case). Bork agreed with me that it is
difficult to harmonize the holdings in Red Lion (a broadcasting case in
which an aggrieved party has a right of reply to broadcast editorials) and
Miami Herald v. Tornillo (a newspaper case in which the aggrieved party
was held to have no right of reply to printed editorials). Yet Bork's
criticism of the broadcasting cases cannot be grounded in any kind of
"original understanding" that broadcasting falls under the protections of
the First Amendment--no one had even conceived of broadcasting at the
time.

>Bork examines several alternatives to "original understanding" in Chapter 10,
>from which I quoted.  The nihilism of Sanford Levinson might be a surprise
>to those who quote him in talk.politics.guns.

Sanford Levinson teaches at my law school, and while I never took any
classes from him, I know him reasonably well. Even if his jurisprudential
views can be characterized as "nihilistic," it should be noted that the
article so often quoted by gun enthusiasts *in no way* partakes of any
so-called "nihilistic" jurisprudential approach. Of course, you have to
know a little more about jurisprudence than Robert Bork tells you to know
this.

My advice is: if you want to know something about jurisprudential
philosophy, it's best to have read more than one book.


--Mike



-- 
Mike Godwin,    |"Liberty resides in the rights of that person
mnemonic@eff.org| whose views you find most odious."
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EFF, Cambridge  |                           --John Stuart Mill
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