Allen Rostron (University of Missouri at Kansas City – School of Law) has posted The Intersection of Originalism and Jot-for-Jot Incorporation on SSRN. Here is the abstract:
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In the aftermath of the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago, lower court judges have produced many decisions about the meaning of the right to keep and bear arms. One of those opinions, a Seventh Circuit ruling in Ezell v. City of Chicago, contains a brief passage raising an intriguing question, about the interaction between originalism and the incorporation doctrine, that has largely escaped notice. The Ezell opinion asserts that Heller requires an originalist approach to the Second Amendment, meaning that judges should give it the meaning it had in 1791 when the Bill of Rights was ratified. But Ezell suggests that when considering whether a state or local government action violates the right to keep and bear arms, as incorporated into the Fourteenth Amendment, the analysis must be “carried forward in time” to the period around 1868 when that Amendment was added to the Constitution. That approach disregards the Supreme Court’s declaration in McDonald that every incorporated right, including the right to keep and bear arms, must mean exactly the same thing as applied to state and local governments through the Fourteenth Amendment as it means when applied to the federal government through the Bill of Rights. The Seventh Circuit cannot be correct in advising that judges should look to 1791 when considering a Second Amendment challenge to a federal law but should focus on 1868 in cases concerning state or local laws. The Supreme Court’s decision in McDonald clearly ruled out such a two-track approach.