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Another Perspective

Supreme Court justices excluded, appeals-court judge Richard Posner is arguably the nation's most respected right-of-center jurist. So when he argues in the New Republic that the high court recently got the Second Amendment wrong, people pay attention. Right leaning academic heavy hitters from George Washington's Orin Kerr to Northwestern's Jim Lindgren to Radford's Matthew J. Franck have offered thoughts.

There are two important facets to Posner's provocative essay. The first concerns the definition of "originalism" -- the rule of thumb that conservatives adhere to in matters of jurisprudence.

The second involves the documented history of the Second Amendment, and what it means for the words, "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."

The basic idea of originalism is pretty straightforward: Laws mean something when they're passed, and that meaning doesn't change until the law changes. But of course questions arise.

What if there's evidence of a gap between what the writers were trying to say, and the words they ended up using -- in other words, is the controlling factor the original intent of the lawmakers, or the original meaning of the words they used?

And even if we'd prefer to look at meaning, what if a law's enactors planned for courts to consider intent instead, because that was the reigning judicial philosophy of the time?

LINDGREN AND GEORGETOWN law prof Randy Barnett have both argued that it makes a lot more sense to focus on original meaning than to try to ascertain lawmakers' intent.

They're right. To truly discover intent would require reading dead people's minds. While the historical record provides some clues, it is a poor substitute for telepathy. And one advocate of a law may have had different reasons than another. The only common ground we can be sure of, and thus the only thing that should have the force of law, is the words they agreed to enact.

But in the case of the Second Amendment, Posner argues the Framers actually wanted courts to consider their intent, for that was standard practice at the time. It is absurd, he says, to interpret a law from one era through a judicial philosophy developed in another.

It's debatable how much judges should consider the dominant judicial philosophy of a given law's time, instead of just reading the law. But let's throw him a bone and look at Posner's case that "looseness" was the philosophy under which the Framers anticipated the Second Amendment's interpretation.

POSNER'S ARGUMENT CENTERS on Blackstone's Commentaries. He offers a quote to support his assertion and goes so far as to call Justice Antonin Scalia's citing of Commentaries in the majority opinion "ironic."

Here's Blackstone by way of Posner: "[T]he fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law...As to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them."

Franck (who, it should be noted, disagrees with the Heller majority) has convincingly rebutted Posner's interpretation of this excerpted passage. The list of considerations was meant to be hierarchical, starting with "words."

Only in cases where the words in question were "dubious" would a judge resort to the other considerations, the last of which, "the spirit and reason of the law," Blackstone explicitly warned "must not be indulged too far, lest thereby we destroy all law."

The example Blackstone gives -- which Posner quotes, but does not comment on -- is a law promising punishment "of the utmost severity" for those who draw "blood in the streets," invoked against a doctor "who opened the vein of a person that fell down in the street with a fit."

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