Constitutional Law

Progressive Originalism: 'Way More Liberal Than Conservative'


After a summer in which gun violence in Chicago claimed more American lives last year than the war in Iraq, the National Rifle Association has gained an unlikely ally in its effort to overturn firearms ownership restrictions in Chicago and nearby Oak Park, Ill.

The Constitutional Accountability Center, described by the Wall Street Journal (sub. req.) as a liberal litigation shop, has filed a brief supporting the NRA in federal court in Chicago.

Applying “progressive originalism”—in which the original intent of the drafters of the Constitution is still the guiding principle for the document’s application to legal issues today, but the constitutional language at issue is the Civil War Reconstruction-era 13th, 14th and 15th amendments—the center argues for an expansion of individual rights, the newspaper explains.

At issue in the Chicago gun-control case is whether the 2nd Amendment prohibits the city’s ability to regulate handguns, according to the Wall Street Journal Law Blog. (This issue wasn’t decisively addressed, as far as Chicago is concerned, by the U.S. Supreme Court decision last year in District of Columbia v. Heller (PDF), because a state statute is at issue in the Chicago case, putting a federalism argument in play.)

Supreme Court Justice Antonin Scalia, of course, is friendly to traditional original construction. And if he and other members of the court are willing to take the same intent-of-the-drafters approach to the Privileges or Immunities Clause of the 14th Amendment and overrule its neutering by the so-called Slaughter-House Cases of 1873, the result could be a considerable expansion of individual rights including the right to bear arms in the Second City.

While, in this one Chicago case, the progressive liberalism approach could lead to a potential strike-down of gun control legislation, the same argument in other cases could support results dearer to the hearts of many with political leanings toward to the liberal left.

When considered in light of the drafters’ views during the Reconstruction, the “Constitution turns out to be way more liberal than conservative,” says professor Akhil Reed Amar of Yale Law School, one of progressiive originalism’s leading proponents.

“The framers of the 14th Amendment were radical redistributionists,” he says. Meanwhile, “the 13th Amendment frees the slaves and there’s no compensation. It’s the biggest redistribution of property in history.”

Additional coverage:

Marquette University Law School Faculty Blog: “Progressive Originalism”

New York Times: “Few Ripples From Supreme Court Ruling on Guns”

ABA Journal: “Bringing Lawyers, Guns and Money”

ABAJournal.com: “Scalia: ‘You Can’t Bear a Tank’”

CBS News: “125 Shot Dead In Chicago Over Summer”

Updated at 4:55 p.m. to include link to related New York Times article.

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