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.”
That is a clear example of words being “dubious” in a given
context.
The Second Amendment’s meaning is only “dubious” if one takes
the preamble (“A well regulated Militia, being necessary to the
security of a free State”) to limit, rather than simply explain and
clarify, the rest of the amendment (again, the rather unambiguous
statement that “the right of the people to keep and bear Arms,
shall not be infringed”).
In the majority opinion, Scalia provides quotes from historical
documents demonstrating that traditionally, preambles have not been
taken to limit enacting clauses. Posner simply states that, in this
case, they do.
BUT LET’S PUT ASIDE that original meaning, rather than original
intent, is the best method for interpreting law.
Let’s disregard the lack of evidence that the Framers wanted
future generations to consider “the spirit and reason of the law”
even when the words were perfectly clear. Let’s forget the custom
that preambles don’t limit enacting clauses. Let’s just give in and
look at the Framers’ intent.
It is true that primarily, the Second Amendment was
meant to preserve the militia. The Framers distrusted standing
armies, and preferred that when needed, citizens report to duty
with guns they kept and maintained at home. It is further true that
this system of military defense is obsolete.
But is it true that the Framers meant only to preserve
the militia? As Lindgren writes, “there is evidence against this
proposition and no evidence in favor of it.”
Basically, some historical figures expressed the belief that the
Second Amendment protects an individual right to own and use guns.
While many sources emphasized the importance of the militia, none
explicitly took the amendment to protect a right limited
to the militia.
Going back to the English traditions on which much American law
rested, Scalia unironically cited Blackstone, who described the
right to arms as “the natural right of resistance and
self-preservation” and “the right of having and using arms for
self-preservation and defence.”
MOVING ON TO AMERICAN sources, Federalist Tench Coxe claimed that the Second Amendment was meant to keep the
people armed, not only so that they could fight, but also to
provide a check against government power.
In finalizing the Second Amendment, the Founders defeated a
motion to add the words “for the common defence” after “bear
arms.”
Lindgren points out that St. George Tucker, “the first major
commentator on the Second Amendment,” saw it as something that
would prevent a travesty like England’s game laws, which had
effectively disarmed the population — the majority of which was
not enrolled in the militia.
In thoughtful people (and also in John McCain) there is always
the maverick temptation, the notion that going against one’s
ideological compatriots shows individuality and intelligence. When
there’s a powerful argument to be made for the other side’s
position, this can indeed be the case.
But if the anti-gun lobby’s take on the Second Amendment’s
meaning has such an argument in its favor, Judge Posner does not
make it.
