Originalism and the Second Amendment   Leave a comment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

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 text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

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