The Schmooze: Here is a great article from the Wall Street Journal discussing liberal lefties and conservative righties uniting around a form of constitutional interpretation based on the original intent of those who wrote the post Civil War Reconstruction amendments; as opposed to the intent of the Founding Fathers.

Rethinking Original Intent
The debate over the Constitution’s meaning takes a surprising turn; a pivotal gun-rights case

By JESS BRAVIN

Art Resource, NY

The nation’s founders in ‘The Signing of the Constitution,’ a 1940 painting by Howard Chandler Christy. A debate is building over how to interpret the document.

After the Supreme Court struck down the District of Columbia’s handgun ban last June, gun-rights advocates trained their sights on similar restrictions in Chicago and Oak Park, Ill. Last month, the National Rifle Association received ammunition from an unlikely source: the Constitutional Accountability Center, a liberal litigation shop.

In a brief filed with the federal appeals court in Chicago, the center not only argued that gun ownership is a constitutional right, it also employed the legal method popularized by such conservative icons as Supreme Court Justice Antonin Scalia. That method is originalism, which seeks to apply the law today according to the text’s meaning at the time of its adoption.

This new twist on originalism is gaining momentum, and its proponents hope it will lead courts to take a more expansive view of individual rights. Although nurtured by liberals — including some with close ties to the Obama administration — some conservatives are backing the broader application of the originalist method. In uniting some unusual allies, the Illinois gun-rights case could be the vehicle to correct what scholars on the left and right say is a 136-year-old constitutional wrong.

(l-r) Hulton Archive/Getty Images; LOC; Time Life Pictures/Getty Images; Getty Images

Progressive originalists are focusing on a clause in the 14th Amendment in their quest to change how the courts view individual rights. Click on the image for a look at the amendment’s history.

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The Constitutional Accountability Center brief served in effect as an intellectual loss leader for liberals frustrated by conservative success in the battle over the Constitution’s meaning. Douglas Kendall, the center’s head, says he personally supports gun control, but if courts embrace his arguments, the door could open to a new era of liberal jurisprudence.

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. The 13th, 14th and 15th amendments radically altered the structure of American federalism, elevating federal power over that of the states, and giving individual rights pre-eminence.

Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. “The framers of the 14th Amendment were radical redistributionists. The 13th Amendment frees the slaves and there’s no compensation,” he says. “It’s the biggest redistribution of property in history.”

By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy Read the rest of this entry »

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Tags: 14th Amendment, Chicago, Civil War, Constitution, Gun Control, Handgun Ban, Lincoln, Original Intent, Scalia, Stevens, Supreme Court