Saturday, March 17, 2007

Are There Two Sets of Constitutional Amendments?

Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

Many constitutional scholars, however, seem to contend that the "revised" meaning of the original understanding would somehow also be applied back against the federal government. I don't have the book at hand, but I distinctly recall Akhil Amar making such an argument in his book on the Bill of Rights (or perhaps it was America's Constitution). I distinctly recall it because I remember repeatedly rereading the passage in which he made the argument -- it was utterly incomprehensible. He might have used a phrase such as "reverse incorporation" (although perhaps I saw that phrase elsewhere). (When I get ahold of the book, I'll post the quote.)

There's probably a vast body of legal literature on the topic. I just don't know it.

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