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
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
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.
Born in the wild to Canadian Timberwolves, Fang was wrestled from his mother's teat at an early age and placed in the custody of a government-sponsored think tank in New York City. He escaped at age seven by gnawing off a dew-claw and has been riding a wave of self-righteous indignation to Nowheresville, baby, ever since. He is currently enjoying being a PhD (by marriage), but on the advice of his attorney has refused all comment except to assert an apparently deeply-held conviction that frozen strawberries should be thawed, not microwaved.