Dead Reckoning

Originalism & The Second Amendment

Last December, in the course of an interview on Meet the Press, President Barack Obama was asked about the shootings at Newtown, Connecticut. He reflected that “something fundamental in America has to change.” It was doubtless an aspect of the national ethos that he had in mind, an upshot of violence manifest in gun play that was now to be confronted. He did not add, as he might have, that a peculiar interpretation of the Second Amendment by the Supreme Court formed the background of the outrage.

That interpretation turned on a reading of the Amendment, and the Constitution generally, according to the method of “originalism.” Espoused by Justice Antonin Scalia, supported by a few of his colleagues, the doctrine holds that in interpreting the Constitution we must search out the original meanings of the words chosen by the Founding Fathers and apply those meanings, as best we can, to the problem at hand. Scalia consequently speaks favorably, and provocatively, of a “dead” Constitution. His point is sharpened by a serious concern: less strict methods of interpretation put at risk the Constitution as true higher law, invulnerable to change by succeeding generations and variable semantics. A constitution must, by definition, be proof against such influences.

Critics of the method contend that originalism would lead to “unthinkable” results: states would not be subject to the Bill of Rights, segregation of students by race would be unobjectionable, discrimination against women would be OK, the rule of “one person, one vote” would not be enforced, and certain protective laws would be held unconstitutional. They offer a competing doctrine: making a virtue of what worries the originalists, they accept constitutional change that marches with changes in social norms.

Early in the game, Chief Justice Marshall reminded us that “it is a Constitution we are expounding” (emphasis his), that the document was “intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs” (McCulloch vs. Maryland, 1819). Marshall was telling the men of his day, and of posterity, that the text must, on occasion, “adapt” and take contemporary meaning into account. As Justice Holmes urged a century after McCulloch, “we must consider what this country has become” in deciding the meaning of constitutional text (Missouri v. Holland, 1920)—he was speaking of the Tenth Amendment. That is the modern doctrine, favored by much of the academy, of the “living Constitution.” But in the leading case on gun control (District v. Heller, 2008), it was originalism that prevailed.

Dick Heller, a resident of the District of Columbia, wanted to keep a handgun at home. Under a registration law of the District, the local authorities refused him a license. Invoking the Second Amendment, Heller sued. In due course, the Supreme Court affirmed judgment for Heller, favoring a meaning of the Second Amendment more appropriate for 1791 than today.

Justice Antonin Scalia’s opinion, joined by only four of his colleagues, is loaded with eighteenth-century references. In addition to Dr. Johnson, Scalia cites a 1771 legal dictionary by Timothy Cunningham for its definition of “arms” as “any thing that a man wears for his defense,” as well a 1794 thesaurus by J. Trusler, which says all firearms constitute “arms.” That has some validity, but here is what the Second Amendment actually says: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We no longer speak of militias, but here is how Adam Smith defined them in 1776: The state, he wrote, may “oblige either all the citizens of military age, or a certain number of them, to join in some measure of the trade of a soldier to whatever other trade or profession they may happen to carry on.” In short, the militia was a reserve of part-time soldiers. The prefatory clause of amendment tells us what the next phrase, the operative clause, is about: a militia is necessary. That is why the people have the right “to keep and bear arms.” These part-time soldiers lived at home, where they were expected to “keep” their arms. Given that the prefatory clause provides the context, “bear” cannot mean to “carry freely wherever one wants,” but to bear in the service of a militia.

Yet the Court held that the prefatory clause did not limit the operative clause, citing early texts on statutory construction. That misconceived originalism killed the District’s defense: because the preface did not enter into the operative clause, Heller could simply “keep” his handgun at home whether or not he would “keep” it for a military purpose. Indeed, the majority argued, to “bear” arms did not always mean military carriage; it had (rarely) been used in a nonmilitary sense. The Second Amendment thus guarantees the individual right to carry weapons “in case of confrontation.” That’s cowboy talk; it invites ordinary folks to pack heat, from handguns to Bushmaster AR-15s—gospel to the National Rifle Association. Four justices dissented.

Fortunately, the Court added dicta favorable to a degree of gun control. It found that the Second Amendment did not guarantee “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” It is permissible, the Court explained, to prohibit the “possession of firearms by felons and the mentally ill, or...in sensitive places such as schools and government buildings, or...the commercial sale of arms [or]...carrying dangerous and unusual weapons.” Those dicta make room for regulation at the margins.

The broad public reaction to the shootings at Sandy Hook Elementary School may yield a practical analysis of the Second Amendment by the Court, encouraging the federal government and the states to enact gun-control legislation regardless of originalist theory. The Court follows election returns, as Mr. Dooley said. A sea change in public sentiment may have the same effect.

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Before one can successfully challenge those who argue for the 'right' to bear arms, it will be necessary to discredit reasoning such as the following.

The term militia is, and was, used as an alternative to (and frequently in opposition to) a standing, professional army. So who is the militia?   The Illinois Constitution (and likely that of many other states), Article XII, Section 1, indicates that:

The State militia consists of all able-bodied personsresiding in the State except those exempted by law.

That was the common understanding of the militia, and every man in the colonies had the ability to obtain and possess what were, at that time, the most recent technological developments in firearms.

What does it mean to be well-regulated?  Thomas Jefferson wrote in 1781 in his Notes on the Sate of Virginia, Query IX:

“Every able-bodied freeman, between the ages of 16 and 50 is enrolled in the militia. …. In every county is a county lieutenant, who commands the whole militia of his county. …. The governor is the head of the military, as well as the civil power. The law requires every militia-man to provide himself with the arms usual in the regular service.”

Is it time to ask whether a written constitution is really a blessing after all? Being constrained by the worlds of men long dead, we must either do things that do longer make sense (see the distortion of democracy caused by the Senate and the Electoral College) or lie about the plain meaning of the text (does anyone really believe that growing a plant for your own use in your own backyard is "Interstate Commerce"?) Why do we treat a document written by a superior group of 18th-century lawyers as if it were Holy Writ? I envy the British and the New Zealanders their unwritten constitutions. I just hope they won't imitate us and put their futures in the hands of dead statesmen and the judges who channel them.

It took the Roman Catholic Church almost 2,000 years until finally on Sept. 30, 1943 Pope Pius XII (hardly considered a “liberal pope”) published his encyclical “Divino afflante Spiritu” promoting biblical studies in harmony with human reason as reflected by objective science and this document opened a “Pandora’s Box” with regard to Catholic thinking and eventually made possible for the attempt of the Second Vatican Council in 1965 to bring “the Church founded by Jesus Christ” “up to date”. 

 Just maybe, the USA Supreme Court could use a bit of “Divino afflante Spiritu” to forget about the “orginialists’ vision” of Scalia and others on the USA Political Constitution, finally ratified with its Amendments in 1791, and bring their thinking up to date according to modern rational scientific thought on the irrational use of modern arms.

 Just looking in from the outside,

 Justiniano de Managua

First of all, a written constitution is a blessing if it is well-forged, and if subsequent members of the judiciaries and legislative branches adhere to its principles.  But some of the very things that have been mentioned (the disputable expansion of the 'interstate commerce clause') can be disputed precisely because they, arguably, conflict with the fundamental principles elaborated in the Constitution and its original amendments.

Ironically, we are not dealing with metaphorically charged propositions in the Constitution (unlike with certain Scriptural passages). 

The 'constituting' of this polity discerning its original operative principles have actually permitted and provoked reforms of erroneous cultural customs in favor of the most fundamental human 'rights'; and arguably, there is nothing contrary to 'modern rational scientific thought' in advocating that a citizenry ought have possession of arms in order to maintain their liberty in the face of those who would desire to expand government imprudently and unjustly.

Incidentally, out of the tens of millions of law-abiding United States citizens who use firearms  daily and who legally possess them, where is there evidence that any significant ratio of them utilize them 'irrationally?'  Rather, the laws that exist need to be enforced to preclude those who can not utilize such instruments rationally, whether due to criminal behavior or incompetency, ftom gaining possession of them.

If the evidence of reason grows, as it would seem clear that it does, and if a totally unprecedented development of mechanical and electrical technologies have crashed over the republic in wave after wave - virtually all beyond the imagination of the Founding Fathers - then might it not be imaginable that some features of our governance architecture, thought to be durable at the time, could prove to be incompatible with the pace, human density, and complexity of American life in the post-colonial, and nearly post-modern 21st Century?

In the matter of terms of and conditions of federal elective office, a case could be made that an arrangment of representation that was a sensible compromise to a nation facing a seemingly limitless westward expansion is no longer apt and should be fundamentally reformed.Instead we have gerrymandering, too frequent elections to support mindful governance, and too much influence of non-citizen monies.

I dare say that many, perhaps most, consider the suggestion of a Constitutional Convention unthinkable, and yet consider that the very circumstances that made the Articles of Confederation ineffective in 1787, bear strong resemblence to what Justice Scalia and his fellows in the supposed "originalist camp" believe (i.e. state-centered mercantilism and unrestricted markets) is best for us today. They are in fact pre-Federalist despite the fiction of the Legal Society the hold sacred. In some respects Justice Scalia has already supplanted the document he claims to hold sacrosanct by settling cases on the basis of pre-Constitutional norms.

To the extent we distrust our ability to be constitutionalists without giving creed-like devotion to every phrase in the present form of our governance framework - we are obsolescent tending toward permanent decline by lack of will to adapt. Will it come to that; I can't say, but it is an ill-wind that drives on the present course of ancient circumstances canonized.

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About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).