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McDonald’s Living Constitutionalism

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3 Responses

  1. You’re correct that the Heller decision was ‘living’ constitutionalism of a sort; While the 2nd amendment guarantees an individual right, it’s a right of a sort that makes politicians of both parties distinctly uncomfortable: A right to, as Tenche Coxe put it, “every terrible implement of the soldier”. So that, if the government ever needed you in that role, you’d come already equipped and familiar with the use of those implements.

    The Heller minority would have been happy to completely abolish the 2nd amendment. The majority chose, instead, to convert it into a rather different right, one less disturbing; A right to only those arms the government didn’t feel threatened by the people having.

    Neither side was being particularly honest about the 2nd amendment, but the losing side was rather less honest…

  2. As history point #2 is absurd. Southern plantation owners clearly valued their arms and militias as ways of mounting an insurrection against Washington. See Writings of Henry Clay, stories re Bloody Kansas, Writings of Jefferson Davis, etc.

  3. John says:

    I don’t follow the argument. Alito made statements in the opinion about public perceptions of the right in 1789 and the 1850s. He then applied the doctrinal test established in the caselaw. Why does that amount to “living constitutionalism”?

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