Tuesday, August 07, 2012

In support of an Originalist interpretation of the Second Amendment

United States Supreme Court Justice Antonin Scalia was on Fox News’s Sunday morning politics show a couple weeks back, and besides being a great ‘get,’ the man gives good interview. I didn’t agree with much of what he said, but I was mightily entertained and educated by the way he said it.

One of the things he discussed that struck me concerned his judicial philosophy. He described himself as an ‘Originalist,’ which he went on to explain was a jurist who interpreted the laws as they were written, in the context of the times in which they were written. He was not given to attempting to read long-dead lawmakers’ minds or imagining what they might have done in his position; the text of the law is right there in black and white, which means there is no nuance required to arrive at an accurate interpretation.

At the time I considered this approach somewhat short-sighted, but in the wake of the latest mass shooting—last week’s—in Wisconsin, following so shortly on the heels of the movie shooting last month, I am forced to reconsider my opinion.

I believe an Originalist interpretation of the Second Amendment may be exactly what we need. Even Scalia hints at it:

Putting aside the issue of whether or not a well-regulated militia is still needed to secure our national freedom in 2012 when a land invasion is unlikely at best; if we consider the rest of the text in its original context as Justice Scalia encourages us to, it clearly supports the citizens’ rights to bear the single-loading, flintlock pistols and rifles in existence at the time the law was ratified by the states, in 1791.

Under an Originalist interpretation of the Second Amendment, all white, male, land-owning American citizens would still be able to defend their home(s) with single-shot small arms; hunters could still stalk big game—and much more sportingly; and the landed gentry could continue shooting skeet and low-hanging birds.

It would be exactly as the Founders would have imagined.

Some Originalists have even stretched the meaning of the Second Amendment to include any weapon that can be held in one’s arms. Fair enough. But to suggest that that protection extends to modern-day shoulder-mounted rocket launchers would be a reckless interpretation indeed. Which is probably why it isn’t legal for American citizens to own bazookas, or flamethrowers, as Scalia himself points out.

So there are some limitations in place already. Some interpretation of the Second Amendment has already occurred, but how?

Here’s a hint: It’s one of the four arms of our government, and it isn’t the Executive, the Judicial or the Gun Lobby.

Since the Second Amendment rightfully enjoins the government from infringing upon the citizens’ right to bear arms, therefore arms may be legally bought and sold, giving Congress the Constitutional authority to regulate them under the commerce clause.

Again, by a strictly Originalist reading.

Therefore, looking at the predictable domestic bloodbath the evening news is becoming (tonight the top ten-minute segment before commercial was taken up by reports of three recent mass shootings), a conscientious Congress could reasonably say, “This problem has at least two heads; crazy people, and their access to weapons of mass murder. Let’s work on both.”

Instead we have the Congress we have, which says, “This problem has two heads. Let’s use them to beat each other senseless while we run for re-election!” And a President so anxious to win another four years he doesn’t offer more than lip service to the rising body count.

But what if political courage existed? What if Ron Paul was a Leftie instead of a Libertarian? What if Congress found some other lobby to replace the lost dollars of the NRA and grew not a backbone, but a brain on gun control?

If, by some miracle, political comity prevailed and military-grade weapons and cop-killer bullets were again outlawed in America, I concede it would still not solve the larger problem. It wouldn’t have stopped the alleged racist in Wisconsin, for instance, but a flint-loading pistol sure as hell would have slowed him down.

JFK’s speech about wanting to see an American on the moon didn’t put Neil Armstrong in the cockpit of Apollo 11, but JFK had to say the thing first. Somebody had to stand up and risk sounding crazy and trust that America, rallied to a cause as challenging, as unprecedented and worthy as the one outlined, would find a way.

We need that kind of patriot today on gun control, and Justice Scalia’s bemused observations on the inevitability of the matter falling into his hands just aren’t going to cut it. We need some respected former supporter in the twilight of his or her career, making an honest, eloquent speech on the Senate floor calling for bipartisan movement on, say, reinstating the assault weapons ban for starters.

Until that or some conversation like it is begun—by a source so unimpeachably conservative the usual shills won’t be able to it shrug off—we’re left with escalating carnage. At the movies. At our places of worship! Does America have to turn into the streets of Fallujah before someone in a position of authority acknowledges the obvious?

In the unlikely event the gun lobby is circumvented and compromise gun control legislation passes and gets signed into law, it will be as good as gold, legally-speaking. As long as it restricts gun ownership to the weaponry available at the time of the passage of the Bill Of Rights, one infers from Justice Scalia, the Originalists on the Supreme Court won’t have any inclination—or grounds—to reverse it.