“21st Century Assault Weapons And 18th Century Muskets”: Why The Next Supreme Court Is Poised To Roll Back Gun Rights
While Congress remains stymied by Republican opposition to any gun regulations, there are four reasons to think that the court system, and the Supreme Court in particular, may be evolving: Orlando, changes in the Court, and two recent court cases.
Remember that the NRA’s understanding of the Second Amendment is an extremely recent phenomenon. For more than 200 years, the legal and scholarly consensus was that, in the absence of a standing army, the Second Amendment was designed to enable states and localities to maintain a “well-regulated militia” by placing muskets and other weapons in the hands of local citizens.
Then came three decades of conservative political activism, focused on law schools, the National Rifle Association, and conservative think tanks. This effort culminated (but by no means concluded) with the 2008 case of D.C. v. Heller, which the Supreme Court found, for the first time, an individual right to gun ownership in the Second Amendment.
This view is now the dogma of tens of millions of Americans, propped up by an entire industry of selective histories and scholarship that can usually be traced back to the handful of philanthropists who paid for it. Indeed, the preamble of the Second Amendment has been written out of the Constitution to the point where the NRA’s national headquarters has a frieze engraved on a wall bearing only the second clause of the amendment, “the right of the people to bear arms shall not be infringed.”
Despite the fervency with which some hold that belief, however, it is very shaky as a judicial matter—and recent signs suggest it may collapse entirely. First, of course, is the Orlando massacre, the latest mass shooting to horrify America. While the Right has, of course, blamed the shooting solely on Islamic terrorism, it seems clear to most people that it was due to a combination of terrorism, homophobia, the personality of the shooter, and access to guns. Without the AR-15-style rifle, the shooter would likely not have killed 49 people.
The Orlando massacre doesn’t have any formal judicial meaning. But Supreme Court justices are also human beings, and it’s hard to see it not impacting how they view the relationship between 21st century assault weapons and 18th century muskets.
Second, there is the shift in the Court’s own membership. The Heller opinion was written by the late Justice Antonin Scalia for a 5-4 majority. That majority is now gone.
Interestingly, we know next to nothing about how a Justice Merrick Garland might vote on gun control. Contrary to the insinuations of Bill O’Reilly and other conservative talking heads, Judge Garland did not vote to uphold the District of Columbia’s gun law that was ultimately overturned in Heller; he only voted for the entire appeals court to hear the case, rather than just a three-judge panel. (One of the appeals court’s most conservative members voted the same way—but they were outvoted.) We have no clue of his view of the Second Amendment, and his more moderate outlook in general means that anything is possible.
Still, Garland is no Scalia—and if he isn’t confirmed, whoever President Hillary Clinton nominates is likely not to be a Garland-style moderate either. So the pendulum may swing back on gun rights simply as a function of the Court’s membership.
Two lesser-known developments, though, may be even more telling.
The first of these is that the Supreme Court decided not to hear an appeal brought by a challenger to a state’s assault weapons ban, upholding the gun-control law. This may mean many things: maybe a majority of justices think the appeals court got it right, or maybe they don’t see enough of a conflict among the circuit courts, or maybe they think this case isn’t the best test case to take, or maybe the short-handed court is limiting its workload, or who knows—it could be anything.
But at the very least, it means the Court does not see the ban as a horrifyingly unconstitutional travesty that requires immediate judicial remedy. Contrast that with two of the cases still outstanding this year: Texas’s challenge to the Obama administration’s immigration policies, and Texas’s defense of its abortion clinic regulations. The Court not only took these two cases but issued (or upheld) injunctions on the enforcement of the challenged rules.
Not so in the assault weapons ban case.
Finally, there’s a case from the Ninth Circuit Court of Appeals, decided earlier this month, that provides some of the best intellectual rationale for limiting, if not overruling, Heller.
That case, Peruta v. City of San Diego, dealt with California’s strict requirements to obtain a “concealed carry” permit. (They are only available to limited groups of people, such as guards, messengers, hunters, or target shooters.) Do those requirements violate the Second Amendment? The Ninth Circuit, by a vote of 8 to 3, said no.
Writing for the court, Judge William Fletcher wrote an extensively researched originalist opinion worthy of Justice Scalia himself. Expressly avoiding the question of whether the Second Amendment gives citizens a right to carry weapons openly in public (a question left open by Heller as well), Judge Fletcher’s opinion focused on whether there is a Second Amendment right to carry concealed weapons.
To answer the question, he turned Scalia’s logic against him. The Heller opinion refuted the plain meaning of the constitutional text on the grounds that it codified a “pre-existing right” to bear arms for self-defense, not just for use in a militia. (That the opinion was by a self-proclaimed strict constructionist was an irony not lost on liberal commentators.) Thus the question became whether there was a “pre-existing right” (in America or pre-colonial England) to carry a concealed weapon in public.
And the answer was obvious: not in the least. On the contrary, English common law, colonial regulations, and state statutes dating back as far as the year 1299 prohibited carrying a concealed weapon. (That 1299 regulation provided that sheriffs prohibit anyone from “going armed within the realm without the king’s license.”) The masterful opinion cited English laws and opinions from 1299, 1304, 1308, 1328, 1388, 1419, 1444, 1541, 1594, 1613 (“bearing of Weapons covertly… hath ever beene… straitly forbidden”), 1686, 1694, 1716, and 1782; and American state cases and statutes from 1822, 1833, 1840, 1842, 1846, 1850, 1868, 1871, 1875, 1876, 1879, 1885, 1889, 1890, 1891, 1897, and 1899—all of which, save a single outlier (Kentucky, 1822), upheld bans on carrying a concealed weapon even in the face of general rights to own or carry firearms in general.
Applying the Supreme Court’s own methodology, the Ninth Circuit reached the obvious conclusion: whatever the Second Amendment does protect, it does not protect concealed-carry rights. Thus the California law is constitutional.
Along the way, the Ninth Circuit, while bound to respect Heller, seriously limited its application. It would not be logically difficult to extend an individual gun right to a right to concealed carry, but Heller was not a logical opinion; it was an historical one. In its view (similar, incidentally, to the conservative dissents in the same-sex marriage cases), history, not logical reasoning, is what determines whether a right exists.
It’s not hard to see how this use of conservative constitutional logic for a substantively liberal outcome would play out in future cases. Is there a historical right to own an automatic weapon? To amass unlimited amounts of guns and ammo? To bring weapons into schools and sporting events? Of course not.
More generally, if history is to be our guide—as judicial conservatives usually insist—then surely it is appropriate to factor in the quantity of firepower involved, which could enable the government to regulate nearly all contemporary weapons.
Of course, one factor unchanged by these four considerations—Orlando, the Court, the assault weapons case, and Peruta—is the way in which gun rights has become a symbol, for white American conservatives, of the good ol’ days, limited government and exceptionalist American values. Indeed, the logic is often adolescent in nature; if it pisses off the liberals, it must be a good thing. That attitude, combined with the unprecedented gerrymandering of the House of Representatives, makes it unlikely that federal legislative action will come any time soon even though a majority of Americans support it.
But if Orlando has awakened the American public, in a way that Virginia Tech, Colombine, Sandy Hook, Roanoke, and San Bernadino did not, then these judicial changes might provide the avenue for that change to occur. They may not provide the will—but they do provide the way.
By: Jay Michaelson, The Daily Beast, June 22, 2016
“Anyone Is Qualified Until Proven Otherwise”: Concealed-Carry Crazy; What Gun Lobbyists Mean When They Tout ‘Gun Safety’
Anyone who has paid even casual attention to pronouncements from the leadership of the National Rifle Association knows that they do not place a particularly high premium on facts or the truth. And while the news media get a passing grade for challenging the NRA on some of its most preposterous claims – the Obama administration is in cahoots with the U.N. to confiscate everyone’s guns — the gun lobby has largely gotten a free ride on gun safety.
Setting aside the fact that the NRA’s general legislative agenda is antithetical to the idea of public safety, consider CEO Wayne LaPierre’s claim that “no other organization in the world has spent more millions over more decades to keep Americans safe.” To many Americans, the NRA’s “family friendly” image rests on the safety and education efforts that are an integral part of its promotion of a culture of guns. These include everything from the “Eddie Eagle” coloring books it disseminates to school children, telling them to call an adult if they find a gun, to multiple courses on the safe use of firearms. The NRA calls itself “the world’s leader in firearm training,” and it may well be.
Yet it has never advocated any serious requirement that gun owners acquire even a modicum of proficiency in the actual handling or use of a firearm before being allowed to purchase one — because that would be “gun control.”
Every state in the union requires that a driver demonstrate some ability to keep a car on the road before receiving a driver’s license. But there is nothing in either federal or state law that requires an individual to have any knowledge of how to use a firearm before acquiring a single gun or a small arsenal. And it’s highly doubtful that the NRA’s eight-hour “Basic Pistol Shooting Course” or its “First Steps Pistol Orientation” class does much to prepare someone for a real-world armed confrontation.
The NRA’s position on gun safety really boils down to this pearl from LaPierre: “The presence of a firearm makes us all safer. It’s just that simple.”
Of course it’s never that simple. Ask the parents of the eight-year-old girl killed last week in Jefferson County, Tennessee, by her 11-year-old neighbor who used his dad’s 12-gauge shotgun to shoot the girl after she refused to let him see her puppy. Or ask the boy’s father if that shotgun made anyone safer.
Thanks to the Supreme Court’s 5-4 ruling in 2008 in District of Columbia v. Heller, it is now the right of every American to keep a gun in the home for self-defense, even if that weapon is more likely to be used in an accidental shooting, a suicide, or a domestic dispute. Encouraging untrained citizens to keep a firearm at home for their personal safety is one thing; but a major thrust of NRA lobbying for the past two decades has been to enact concealed-carry laws that send those same untrained, armed citizens into the public square — to schools, college campuses, national parks, restaurants, the workplace, and on public transport, including Amtrak trains. And that’s where any claim by the NRA to champion public safety really falls apart.
The NRA may talk about “responsible” gun ownership, yet it gleefully helps to arm people who have demonstrated neither the skill to use a weapon in a high-stress situation (or any other circumstance), nor any knowledge of the laws pertaining to the use of weapons. Nor does the NRA seem to care about the mental stability of those who carry concealed weapons. As far as the NRA is concerned, anyone is qualified to carry a concealed until proven otherwise. In 2011, LaPierre told the NRA’s national convention: “Every American wife and mother and daughter, every law-abiding adult woman should be trained, armed, and encouraged to carry a firearm for personal protection.”
Today, every state in the union has enacted a concealed-carry law. Most, sadly, follow the NRA model, including few if any training requirements or provisions that restrict permits to those citizens with a demonstrated need.
So in Virginia and Iowa, blind people can obtain concealed-carry permits. In Virginia and several other states, residents may qualify for a concealed-carry permit by completing an online “course” that is virtually impossible to fail. I qualified for a Utah concealed-carry permit – which would allow me to carry a concealed weapon in fully 35 states because of state “reciprocity” laws — by listening to a six-hour lecture at a Maryland rifle range where I was required neither to pass a written exam nor to fire a single bullet. The overwhelming majority of states also have no requirement that concealed-carry permit holders demonstrate any facility in the use of a firearm. In 18 states where live-fire training is mandatory, standards for passing are extremely weak, based on target shooting scores, which have little correlation to using a gun in a high-stress combat situation.
A Department of Justice study of local law enforcement training back in 2006 found that police departments required a median 60 hours of firearms instruction. Better than 90 percent also required some training in simulated stressful conditions and in night or reduced light conditions. But you won’t find any requirement of that sort in state laws for concealed-carry permits. Unlike police who are frequently required to undergo some sort of re-qualification program, few if any states require concealed-carry licensees to demonstrate any sort of competence to use guns over time. Some states automatically grant concealed-carry permits without any classroom or live fire training to anyone who has served in the military. Although concealed-carry licensees were never intended to replace police or to undergo the same training as police, a little training couldn’t hurt.
Thirty years ago, hardly anyone anywhere in the U.S. could legally carry a concealed weapon. By the early 1990s, promoting concealed-carry had become one of the NRA’s top legislative priorities. By the beginning of 2012, the Government Accountability Office estimated that 8 million citizens had obtained concealed-carry permits. Two years later, the decidedly pro-gun Crime Prevention Research Center estimated that at least 11 million Americans could legally pack heat when they walked the streets.
The NRA thinks this is a sign of great progress because all of these secretly armed, wannabe Rambos will come to the rescue of fellow citizens in distress and make the bad guys more wary of committing crimes. But do most Americans really feel safer with 11 million largely untrained would-be “law enforcers” on the streets?
Even with the best training, studies show that police have a very hard time hitting their intended targets. New York City’s Police Department has some of the best-trained officers in the country. But when 12 Brooklyn cops opened fire on a fleeing gunman last month, only one of 84 shots fired hit the suspect. In 2013, police in Times Square opened fire on a man after he reached into his pocket for what the cops thought might be a gun. Three shots were fired. One round hit a 54-year-old woman in the knee. Another grazed a 35-year-old woman’s buttocks. None hit the suspect.
A RAND Corporation evaluation of NYPD firearm training between 1998 and 2006 found that the average hit rate in gun fights was about 18 percent. Where there was no return fire, the hit rate went up to 30 percent.
Given this not-so-great record for the best-trained police, what should the public expect from wholly untrained civilians?
Earlier this week, a 47-year-old woman with a concealed-carry permit reportedly fired three shots at an SUV leaving a Home Depot parking lot in Michigan after witnessing one of the store’s security guards chasing two shoplifters who jumped into the vehicle.
Thanks to the NRA, we can all look forward to more illegal shootings like that one, by self-appointed citizen “police” who are unlikely to hit anything — except an innocent bystander.
By: Alan Berlow, The National Memo, October 10, 2015
“Gun Control Is Political”: So Is Refusing To Address The Politics Of Gun Violence
After the 24-year-old television reporter Alison Parker and her 27-year-old cameraman Adam Ward were killed while on camera from a lake outside of Roanoke, Virginia on Wednesday morning, the frontrunner for the Democratic nomination, Hillary Clinton, somewhat predictably tweeted that “[w]e must act to stop gun violence, and we cannot wait any longer” and Virginia governor Terry McAuliffe called for new gun control measures in the form of background checks .
The conservative response to Democrats’ anodyne reactions is even more predictable: it’s wrong, they say, to “politicize” individual acts of firearm violence. But gun violence in the United States has everything to do with politics – and we should be talking more, not less, about the impact of America’s failed gun policies on victims and their families and communities.
It is true – as apologists for the status quo will be sure to point out – that it is impossible to know whether today’s murder specifically could have been prevented by a more stringent gun control regime, let alone by one characterized exclusively by background checks. But on a more systematic level, the result of our lack of substantive, internationally comparable gun control is entirely clear: the US is not only an international outlier in its lack of gun control, it is also a massive outlier in terms of firearm violence. The ease of access to firearms clearly causes large numbers of unnecessary deaths by homicide, suicide, and accident.
Thus, the staggering human toll of gun violence in the US is not just a random coincidence; it is the result of political choices.
Which policies could reduce the huge number of mass killings in the US are not a mystery: after 35 people were killed in Tasmania in 1996, Australia’s conservative government enacted sweeping gun control measures. The result was that both homicides and suicides by gun were immediately and sharply reduced, and there have been no mass killings in the country since. Conversely, there have been 885 mass killings in the United States since December 2012, when a gunman killed 20 elementary school students at the Newtown Elementary School in Sandy Hook, Connecticut.
Identifying the policy changes that could reduce American firearm slaughter is easy, of course – and figuring out a politically viable way of getting these policies enacted is another matter. Even if the 2008 Supreme Court decision in District of Columbia v Heller declaring an individual right to bear arms in the 2nd Amendment were to be overruled by the same court, the political obstacles in the path of meaningful gun control are formidable. Isolated state and local measures aren’t meaningless, but there are distinct limits to how much they can accomplish. Tough federal gun control measures could make a big difference, but passing any such measure through both the House and a Senate that massively over-represents small, rural states with a disproportionate number of gun-owners would be impossible for the foreseeable future.
The lack of congressional reaction to the Sandy Hook massacre in 2012 is instructive on that point. Even very modest, overwhelmingly popular gun control measures, involving background checks and controls on assault weapons and high-capacity magazines, failed to pass a Democratic Senate and, even if they had, they would have had no chance of passing the House of Representatives. Australian-style gun control is not coming to the US anytime soon, especially with support for gun rights only growing.
But gun control isn’t the only way to address gun violence, and Parker and Ward are not even its typical victims. Even had Parker and Ward’s killer not turned his gun on himself, there would have been an intensive investigation into their deaths, and the sure-to-have-been apprehended killer would have faced some measure of justice.
Consider, though, the situation 280 miles northeast of Roanoke in Baltimore, Maryland. The horrifying death of Freddie Gray in police custody has highlighted the violence committed by police against Baltimore’s African-American citizens, but what the police have failed to do for the community is also important to understanding how gun violence typically plays out in America. So far in 2015, more people have been killed in Baltimore (population 620,000) than in New York City (population 8.4 million). The more than 200 murder victims in Baltimore receive much less attention from either the investigating authorities or the media, and the vast majority of those victims are poor and African-American. Indeed, the horrifying spike in homicides has been met with a weak response by the police: the clearance rate for murders is less than 40%.
A lack of federal gun control is certainly a large part of the problem of the toll of gun violence. But other policies and social conditions – most obviously high levels of economic and racial inequality – also play a major role, and both are also the result of political choices.
As the journalist Jill Leovy explains in her new book Ghettoside, poor African-American communities in many American urban areas are simultaneously over- and under-policed: they are on the one hand subject to routine harassment, detention, and imprisonment for minor offenses but, when it comes to serious violent offenses committed against poor African-Americans, the reaction by the state and the media is too often apathetic or ineffectual. Most victims of gun violence will never make international news, and their deaths will almost never result in calls for more gun control – let alone the kind of gun control that would reduce the number of guns in the hands of Americans, which is the only tried-and-true method for reducing gun violence.
The American epidemic of gun violence has not been “politicized” by those who seek to alleviate it. It is and always has been an inherently a political question, as is what we’re going to do about it. The answer, at least for now, seems to be “nothing”. But it doesn’t always have to be.
By: Scott Lemieux, The Guardian, August 26, 2015
“Gun Laws And What The Second Amendment Intended”: When The NRA Didn’t Support Everything That Goes ‘Bang’!
As school shootings erupt with sickening regularity, Americans once again are debating gun laws. Quickly talk turns to the Second Amendment.
But what does it mean? History offers some surprises: It turns out in each era, the meaning is set not by some pristine constitutional text, but by the push and pull, the rough and tumble of public debate and political activism. And gun rights have always coexisted with responsibility.
At 27 words long, the provision is the shortest sentence in the U.S. Constitution. It reads: “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.”
Modern readers squint at its stray commas and confusing wording. The framers believed in freedom to punctuate.
It turns out that to the framers, the amendment principally focused on those “well regulated militias.” These militias were not like anything we know now: Every adult man (eventually, every white man) served through their entire lifetime. They were actually required to own a gun, and bring it from home.
Think of the minutemen at Lexington and Concord, who did battle with the British army. These squads of citizen soldiers were seen as a bulwark against tyranny. When the Constitution was being debated, many Americans feared the new central government could crush the 13 state militias. Hence, the Second Amendment. It protected an individual right – to fulfill the public responsibility of militia service.
What about today’s gun-rights debates? Surprisingly, there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention; nor with scattered exceptions in the transcripts of the ratification debates in the states; nor on the floor of the U.S. House of Representatives as it marked up the Second Amendment, where every single speaker talked about the militia. James Madison’s original proposal even included a conscientious objector clause: “No person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
To be clear, there were plenty of guns in the founding era. Americans felt they had the right to protect themselves, especially in the home, a right passed down from England through common law. But there were plenty of gun laws, too. Boston made it illegal to keep a loaded gun in a home, due to safety concerns. Laws governed the location of guns and gunpowder storage. New York, Boston and all cities in Pennsylvania prohibited the firing of guns within city limits. States imposed curbs on gun ownership. People deemed dangerous were barred from owning weapons. Pennsylvania disarmed Tory sympathizers.
That balance continued throughout our history, even in the Wild West. A historic photo of Dodge City, Kansas, the legendary frontier town, shows a sign planted in the middle of its main street: “The Carrying of Fire Arms Strictly Prohibited.” Few thought the Constitution had much to say about it.
Through much of history, this balance evoked little controversy. Even the National Rifle Association embraced it. Today the NRA is known for harsh anti-government rhetoric, but it was started to train former Union soldiers in marksmanship. In the 1930s, the group testified for the first federal gun law. In 1968, its American Rifleman magazine told its readers the NRA “does not necessarily approve of everything that goes ‘Bang!’”
Of course, over the past three decades, the NRA shifted sharply. At the group’s 1977 annual meeting, still remembered as the “Revolt at Cincinnati,” moderate leaders were voted out and the organization was recast as a constitutional crusade.
Together with even more intense advocates, such as the Second Amendment Foundation, of Bellevue, Washington, they are quick to decry any gun laws as an assault on a core, sacred constitutional right. They waged a relentless constitutional campaign to change the way we see the amendment.
Remarkably, the first time the Supreme Court ruled that the Second Amendment recognizes an individual right to gun ownership was in 2008. The decision, District of Columbia v. Heller, rang loudly. But a close read shows that Justice Antonin Scalia and his colleagues make the familiar point that gun rights and responsibilities go together. The court said that, like all constitutional rights, there could be limits. “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” Scalia wrote.
That’s how judges have interpreted this constitutional right. Dozens of courts have examined gun laws since 2008. Overwhelmingly they have upheld them, despite the claims of gun-rights attorneys. Yes, there is an individual right to gun ownership — but with rights come responsibilities. Society, too, has a right to safety, and there is a compelling public interest in laws to keep guns out of the hands of dangerous people.
To be sure, the final scope of the constitutional provision has not been determined. The Supreme Court has not spoken again. It is infallible because it is final, as Justice Robert Jackson once wrote, not final because it is infallible. But the greatest controversy revolves around issues such as the rules for carrying a gun outside the home.
So what does the Second Amendment really mean? From the debate over the Constitution to today’s gun fights, the answer is really up to us, to the people. That answer changes over time. But one thing has remained surprisingly constant: Americans cherish freedom, but believe passionately that rights demand responsibilities. It’s hard to think of an area where that insight matters more than when it comes to ensuring that lethal weapons do not fall into the wrong hands.
By: Michael Waldman, President of the Brennan Center for Justice at New York University School of Law; The National Memo, July 14, 2014
“Fundamentalist Constitutionalism”: Punctuation Marks, Antonin Scalia, And The Farce Of “Originalism”
I have no idea whether Supreme Court Justice Antonin Scalia is heading to the beach this summer now that he has made America safe for religious employers to discriminate against their female employees. Nor do I have any idea whether Danielle Allen’s new book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality” is on his beach-reading list. But it should be.
You have probably heard about the book and its assertion that there is a significant typo smack in the middle of the Declaration’s most famous part. We read the phrase “life, liberty and the pursuit of happiness” with a “.” at the end. It’s not there in the original, according to Prof. Allen. It was added in later versions, as a mistake or perhaps even as a small spot of errant ink. The result, Allen asserts, is a dramatically different meaning to the entire document.
Historians will debate the conclusions Allen has drawn from her detective work, but those conclusions aren’t the reason Scalia ought to read the book. Rather, it is that starting premise about the punctuation that should give him pause (I know, it won’t) because it succinctly puts the lie to the entire enterprise of Constitutional “originalism” upon which Scalia has built his career.
Originalism, briefly put, is a jurisprudence resting on the following wobbly assumptions: the Constitution only has one meaning; that meaning can be known without ambiguity (by those smart enough to read it); all laws ought to be judged against that singular, unchanging meaning. Not too long ago originalism resided on the lunatic fringe of legal thinking, sort of like Ayn Randian economics. Over the last generation it has entered the mainstream, sort of like Ayn Randian economics, and no one has been more responsible for that than Antonin Scalia.
Opponents of originalism have often argued instead that the Constitution needs to be a “living” document, adaptable to a changing society. That view became prominent a century ago as legal thinkers, among them Woodrow Wilson and Oliver Wendell Holmes, tried to reckon with a rapidly changing industrial society. And to these Scalia and his comrades have said that the Constitution is resolutely dead and should be read historically, not in light of contemporary society.
But as the business of the pesky punctuation in the Declaration of Independence reminds us, words can mean different things and can be read in different ways. and even small changes in a sentence can yield different ideas. We know what Hamlet’s “To be or not to be” soliloquy says, but any high school junior can tell you that it might have any of several meanings. Or all of them. Or none of them.
Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst. All acts of reading are necessarily acts of interpretation, and as a consequence there are no objective truths nor single meanings. The most we can do is achieve a best consensus, recognizing that it might change in the future.
Scalia knows all of this, I suspect. I don’t think even in his extraordinary arrogance and self-regard he believes he can know exactly and perfectly what was in the minds of all the delegates who wrote the Constitution. And indeed, whatever one thinks of Scalia as a jurist, his track-record as a historian is shoddy, filled with cherry-picked examples, incomplete understandings and downright risible conclusions. The history Scalia presented as part of his majority opinion in District of Columbia v. Heller wouldn’t pass muster in my undergraduate seminar.
Scalia’s real goal in promoting “originalism” is to remove Constitutional issues from the realm of political debate altogether and treat them instead as theological dogma.
“Originalists” like Scalia read the Constitution in much the same way that fundamentalist Christians read the Bible. In the world of those conservative Christians, the Bible says what it says, there is no room for any interpretation of it, and the Bible is inerrant. In fact, we might coin a new term, “fundamentalist Constitutionalists,” since there is now a small but growing number of people convinced that the Constitution, like the Bible, may have been written by men but was actually inspired by God.
While this kind of reading may be intellectually indefensible – or downright silly – it does have the advantage of bestowing extraordinary power on those who can claim to possess The Truth, whether huckstering evangelical, tyrannical bishop, or snarky Supreme Court justice.
Ironically, of course, we will look back on “originalism,” or “fundamentalist Constitutionalism,” as being entirely of its political and cultural moment. One hundred years from now, we will see it as engineered by revanchists like Scalia who recoiled at the dramatic social changes of the recent past – civil rights, feminism, gay rights, and more – and thought they could use the Constitution to retreat into a past largely of their own invention. Future scholars might even debate what, exactly, Antonin Scalia meant as they parse his body of writing, and might find that his very words could be subject to multiple readings. That would be the final, most delicious and fitting irony for “originalism.”
By: Steven Conn, Author/Professor, Ohio State; The Huffington Post Blog, July 7, 2014
Share This Blog
mykeystrokes.com- “The Unrelenting Hostility Of Washington’s Courtier Press”: The Media’s Crusade Of Scandals Against Hillary Clinton July 28, 2016
- “Endorsing This Philistine”: The Christian Right Has Surrendered To Trump July 24, 2016
- “Cop Killers Serve No Cause”: It’s Getting To The Point Where No Lives Matter July 24, 2016
mykeystrokes.com 