Yuechao Nie (Boston University School of Law) has posted The End of History and the Last American?: Justification for and Methods of Using History to Construct the Right to Keep and Bear Arms on SSRN. Here is the abstract:
Modern Americans face difficulties interpreting and applying their centuries-old Constitution. One approach, the history-obedient approach, is to obey the method adopted by the majority of the Ratifiers. However, for the Second Amendment, which codifies a pre-existing unwritten individual right to keep and bear arms for self-defense, there are at least two views in present academia about what the prevailing method among the Ratifiers was: The conserving view maintains that the codification was meant to conserve the evolving character of that right, while the revolutionary view characterizes the Ratifiers as revolutionaries of the English tradition employing codification to radically altered the previous character of unwritten rights and virtually insulating them from everyday politics and changing customs. Following the history-obedient approach would stick the American people in this historical-accuracy quagmire, unable to fulfill their inalienable obligation to run the Constitution. Professor Jack Balkin’s living originalism offers a way out. Acknowledging the huge ambiguity in and thus sanctioning a broad construction zone for the Second Amendment, this theory does not ask which historical view most accurately describes the construction plan approved by the first American but instead allows the American generation today to devise its own construction blueprint using the materials and lessons of past constructions. Assessing the two historical views based on their normative appeal to the present American, it appears that both views reflect one important aspect of the cherished American tradition: the conserving view, popular sovereignty; the revolutionary view, individual dignity and liberty. Therefore, the contemporary American people can make use of both views in their constitutional construction of the Second Amendment as they see fit. There are at least two possible construction methods. First, to make necessary adjustments to the old contents of these views so that the normative strengths of each can better benefit modern America. As an example, for the conserving view, given America’s short history, diverse population, and fundamental transformation since the Civil War, it is advisable to greatly relax the English common law’s strict requirements of longevity, to a lesser extent that of uniformity, in contemporary America. Second, to synthesize both views into a coherent doctrinal whole so that the normative values of both can truly serve modern America. Professor Bruce Ackerman’s synthesis theory provides viable guidance in this endeavor. At the end of the day, this Note only makes some possible construction proposals for the individual right to keep and bear arms; each generation of Americans is the architect-in-chief of the continually rising tower of the U.S. Constitution in their era. The Ratification history is not the end of history of that edifice, because the Ratifiers are not the last American.
Lawrence Solum