Federal Judiciary

Academic Round-Up

By Akin Gump Supreme Court Practice Group

I want to thank everyone for their patience as it has been a tough few weeks for me in light of some pressing deadlines and conflicting commitments. I realize that we have a backlog of articles for the academic round-up, but I hope to catch up in the next two or three months with regular updates. The following articles are particularly timely, given the Court’s (and this blog’s) focus on the Heller case:

The University of Pennsylvania Journal of Constitutional Law will publish an article by Nathan Kozuskanich (Historian at Nipissing University) entitled “Originalism, History, and the Second Amendment: What Did Bearing Arms Really Mean to the Founders?,” see here. This is an interesting piece because it makes extensive use of digital archives of early American newspapers, pamphlets, broadsides, and Congressional proceedings published between 1763 and 1791. Professor Kozuskanich ultimately concludes that both the collective and individual rights paradigms are too “limiting in their conception of arms bearing and ownership in early America.” Instead, he finds that the use of “bear arms” had a military meaning, rendering it a “civic right linked to militia service.”

Ross Davies (George Mason University School of Law) has posted an interesting piece on SSRN entitled “Which is the Constitution?,” see here. The piece is forthcoming in the Winter 2008 edition of the Green Bag 2d. In the context of Heller and the Second Amendment, Professor Davies asks the provocative question of whether the Court has the power to authoritatively say what the text of the Constitution is, rather than only what it means. He asks that question in the context of which version of the Second Amendment–those with zero, one, two, or three commas–governs. As he notes, “identifying and preserving a single, agreed-upon version of a text produced by our federal constitutional ratification processes can be much more difficult than one might imagine,” and the Second Amendment is no exception. I highly recommend this short eleven-page piece.

Full post as published by SCOTUSBLOG on March 15, 2008 (boomark / email).