Posted by: captainfalcon | March 3, 2010

Things that don’t concern me

I think Randy Barnett misinterprets Orin Kerr’s point. Kerr isn’t saying that the PvI Clause doesn’t protect some version of the right to keep and bear arms;* he’s saying that the (purportedly) originalist method Gura used to figure out what the PvI Clause protects is inconsistently applied.

On its original public meaning, Kerr suggests (following Justice Ginsberg), the PvI Clause protects a right of contract, but only for men. Gura cites originalist considerations in favor of PvI protecting the right of contract. But he doesn’t cite originalist considerations in favor of restricting that right’s scope to males. Quite the contrary; he denies its scope is thusly restricted. Originalism gets him the preferred right, but then he seems to abandon originalism in order to apply the right as he’d like to. This is why Gura’s method (which is popular among libertarians) seems to Kerr a “results-oriented approach.”

Given that originalism is not a results-oriented approach (but, instead, is supposed to follow history where it leads) this fact calls out for explanation. One possibility is that Gura is being disingenuous; he is, as Kerr puts it, “100% originalist…only 50% of the time.” Alternatively, it could be that originalism plus the Constitution implies libertarianism (or some other results-oriented doctrine). In short, “unless you believe, as does my co-blogger Randy, that the Constitution…properly construed mandates libertarianism o’er the land, it seems like a pretty result-oriented approach.”

Of course, one can understand Barnett’s being piqued at the “o’er the land” business, which more or less sneers at his constitutional theory. (Although, as both Keith Whittington (originalist, conservative, Princeton) and Akhil Amar (nonoriginalist, liberal, Yale) noted at the recent Federalist Society symposium on Originalism, that the Constitution was written two hundred plus years ago to address very different political questions than those that concern us today is reason to expect that it doesn’t yield results that map perfectly onto any contemporary ideology.) But Barnett’s reply doesn’t address the sneer. Instead, he says that various scholars agree with his conclusion about what PvI protects. But Kerr’s problem isn’t with the conclusion; it’s with what Gura does with the method he uses to derive it.

* Which is what the “reading” of PvI to which Barnett adverts concludes.


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