2ND AMENDMENT “HISTORY AND TRADITION": YALE PROFESSOR’S NY TIMES ARTICLE OMITS KEY CASE

Published on May 2, 2024
Duration: 17:28

This video analyzes a New York Times article by Yale Professor Emily Bazelon concerning the use of 'history and tradition' in constitutional law, particularly regarding the Second Amendment. The host argues that the article omits key historical precedents, including Justice Harry Blackmun's own use of historical tradition in cases like Marsh v. Chambers to interpret the Bill of Rights. The video emphasizes that historical tradition, especially from the First and Second Congresses, is crucial for understanding the original intent of constitutional amendments.

Quick Summary

Justice Harry Blackmun, author of Roe v. Wade, utilized 'history and tradition' to interpret the First Amendment in Marsh v. Chambers (1983). This precedent, which the New York Times article omits, shows that historical context is a valid tool for understanding constitutional rights, including the Second Amendment.

Chapters

  1. 00:00Introduction: NYT Article on History & Tradition
  2. 00:31Host Mark Smith's Credentials
  3. 01:24Analyzing Emily Bazelon's NYT Article
  4. 02:18Harry Blackmun and Roe v. Wade
  5. 03:08Blackmun's Approach to History
  6. 03:41The Text of the Second Amendment
  7. 04:14Role of History and Tradition in Interpretation
  8. 05:12Blackmun's Use of History in Marsh v. Chambers
  9. 06:00Marsh v. Chambers: Legislative Prayer Case
  10. 07:07Quote from Marsh v. Chambers Majority Opinion
  11. 08:00Blackmun Cites History for First Amendment
  12. 09:07Supreme Court on Firearms Regulation History
  13. 10:02Article Omits Marsh v. Chambers
  14. 11:26Importance of the First and Second Congress
  15. 13:10First Congress's Actions as Evidence
  16. 14:32The Second Amendment and 1792 Militia Act
  17. 16:24Supreme Court Embracing Historical Approach
  18. 17:09Conclusion and Call to Action

Frequently Asked Questions

What is the significance of Justice Harry Blackmun's involvement in the Marsh v. Chambers case regarding constitutional interpretation?

Justice Harry Blackmun, known for authoring Roe v. Wade, was part of the majority in Marsh v. Chambers (1983). In this case, he cited the 'deeply embedded history and tradition' of legislative prayer to uphold its constitutionality under the First Amendment, demonstrating that even liberal justices have historically used this methodology.

How does the Militia Act of 1792 relate to the Second Amendment and its interpretation?

The Militia Act of 1792, passed by the same Congress that ratified the Bill of Rights, required men aged 18-45 to provide their own firearms for militia duty. This historical act suggests that the founders understood individuals within this age range to possess the right to keep and bear arms, supporting a broad interpretation of the Second Amendment.

Why is the First Congress considered important for interpreting the Bill of Rights?

The First Congress drafted and proposed the Bill of Rights. The Supreme Court often gives significant weight to their understanding and actions, such as appointing chaplains while simultaneously drafting the First Amendment. Their contemporaneous actions are seen as weighty evidence of the Bill of Rights' true meaning.

What is the core argument against Emily Bazelon's New York Times article on history and tradition?

The core argument is that the article critiques the use of 'history and tradition' in constitutional law but omits crucial historical precedents, including how liberal justices like Harry Blackmun have employed this very method to interpret constitutional rights, particularly the First Amendment.

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