understood as individual rights and also subject to comparable restrictions. But Blanding is a questionable precedent. As discussed above, James Madison and others asserted that the First Amendment was originally understood to guarantee freedom of the press and freedom of conscience in a similar way. But no one at the time of ratification claimed that the same standards should apply freedom of the press and the right to bear arms. Blanding contains no discussion whatsoever of what press freedom under the First Amendment originally meant or of the history that had led to the adoption of the Massachusetts or federal free press guarantees. Yet in Heller, at least, a majority of the Supreme Court appears to have agreed with Justice Scalia’s assertion, relying on Blanding, that press freedom was originally understood to be subject to restrictions comparable to gun usage.

8.3. Originalism Without Reference to History – Phillip Kurland’s View of First Amendment Jurisprudence and the Patterson v. Colorado Case.

The use of Blanding as a precedent for the original meaning of press freedom can be traced to ideologically conservative academics, especially Professor Philip Kurland, who argued that modern American law of press freedom had no relation to the First Amendment but merely reflected the recent libertarian views of some justices on the Supreme Court.^[287]  (Professor Kurland’s views on this subject were influential enough to have been cited in a 1982 Justice Department memo as a potential source for policy

[287] Kurland, Philip, “The Irrelevance of the Constitution: The First Amendment’s Freedom of Speech and Freedom of Press Clauses”, 29 Drake L.R. 1 (1979) (hereafter: “Kurland”. Notably, Kurland did not cite or mention at all the work of Leonard Levy, which was at the time the most in-depth historical study of the “original meaning” of the press freedom clause. In that sense, Kurland’s work was not only a misunderstanding, but also unoriginal. In a later article, Kurland seems to have retreated from this position somewhat leaving his final view of the subject quite unclear. See Kurland, P., “The Original Understanding of the Freedom of the Press Provision of the First Amendment” 55 Mississippi L.J. 235 (1985).