What, for an originalist, is a right? The Bill of Rights has a number of rights set out. Heller is offered as an example of how to do the proper analysis. But that kind of analysis does not tell is what a right is under the Constitution. I would expect it to be what a right was conceived to be at the time of adoption, but I am not at all sure that is what originalists think or want. The account of the nature of rights is not discerned by looking to particular clauses or provisions, because the meaning of the clauses depends on the account of the nature of rights. Can't use later developed theories, e.g., Hohfeld, because those accounts are not what was thought at the enactments. Are we locked into a Lockean theory forever? Are the rights of the Constitution through the first 10 Amendments different things than the rights of the 13th, 14th, 15th Amendments? Are the texts of Locke and his followers part of the law of the United States? Just helpful texts? Do we set all this sort of thing aside as due to ambiguity or vagueness, to be sorted out by the current theories rather than those of the original time? That would leave increasingly smaller areas in which originalism might do some work. Does the theory fixing meaning of the Constitution at the adoption(s) apply to the notion of a constitution? Why would that be?
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