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Fast and Loose
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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.

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