Baude on Originalism, History, and the Second Amendment

Will Baude has a great post up about the Heller case, which makes an important point about  both the Second Amendment and originalism.  Will writes:

It seems to me that most of the work in Heller is done by an interpretive claim that is as much legal or theoretical as it is historical. This is the majority’s claim that “the Second Amendment was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors,” and that even if self-defense was not the primary purpose of “the right’s codification; it was the central component of the right itself.” The idea here is to see the Second Amendment as framed against a vast pre-existing backdrop of non-constitutional legal rules, including the right to keep and bear arms. The Second Amendment plucks one of those pre-existing rules and codifies it against future change.

Now one could certainly disagree about that move. Some people think that legal rules should be limited to the paradigm cases or purposes that motivated their enactment. But I think the move is correct. If the Takings Clause began by telling us that it was primarily motivated to stop the uncompensated impressment of horses and guns by the army, we should still read “private property” consistent with its natural and traditional scope. In any event, once that move is established, most of the history described by the dissent is beside the point.

This is a recurring theme in originalism debates. Often what seems like an intractable historical debate is really solved by a legal or interpretive question about what kind of history matters.

This is especially true as to the Second Amendment, because so much of the Bill of Rights was about protecting the traditional rights that the Americans believed they possessed.  Some constitutional provisions attempt to preserve existing rights, some attempt to reform the law.  The Bill of Rights is mainly about the former.  Under this view, the purpose of the provision fits neatly with the meaning of the legal words.

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on January 10, 2014 at 11:09:33 am


Agreed; but let us take this a step further.
If, in fact, the 2nd (and others) are intended to codify an existing right and we should look at the historical conditions surrounding this right then let us ask the following:
(I am not being facetious here but rather trying to sort out how one can reasonably apply originalism, historical practice and intervening changes in conditions to critical issues, so bear with me).
1) How is it that a citizen must surrender his anonymity when seeking to own a firearm and become part of a government database - when no such practice existed at the time of the BOR?
2) How is it that the government can limit the types of firearms that a citizen may possess,often on the theory that they are military weapons? After all, the weapons possessed by the colonists were the same weapons that were deployed by both sides and, in some instances, i.e, rifled bore weapons possessed by the colonists, were superior to those used by the Brits. Indeed, they were more accurate and may have had a larger calibre projectile.
3) How is it that the government can seek to limit the amount or prevalence of firearms amongst the population when such possession was a commonplace during colonial times. In fact, I have seen it remarked that one of the biggest surprises confronting the Brits upon their arrival here in military force was the fact that the "bloody colonials" were so well armed" and in such great numbers. Apparently the Brits thought that they would be marching off to Surrey and encountering some farmers outfitted with nothing more than pitchforks.
4) I don't know about the availability of artillery pieces amongst the colonials, but surely some towns / militias had them.

What follows from this?
One could stretch this out to include possession of a an M1 Abrams tank (I am not advocating that BTW) - but what operative principle would prevent this?
Conversely, what operative principle should permit the possession of so called 'military grade" firearms?

Hope this doesn't sound too "wacko" - but I think it is a serious question(s).

take care

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Image of gabe
on January 10, 2014 at 11:34:25 am

This post highlights a recurring issue: that the term "originalism" contains an ambiguity that is often exploited by its critics. The ambiguity arises because "principle" is not synonymous with "meaning." The principles underlying the Constitution are not derivatives of the Document's "meaning," and those principles should not change even if the interpretation of particular language does.

Meaning, as Baude implies, requires a degree of interpretation, and the reality is that interpretations do not always faithfully reflect the source material. Interpretations inevitably lose detail and sometimes the details are important."Meaning" invites a degree of subjectivity that critics of originalism cleverly note is inherently contradictory. "Meaning" can change over time, and this invites the question of whether the meaning controls at any given time, or is meaning merely a surrogate for the underlying principle, that must constantly be tested for fidelity? If the meaning of a particular phrase, or interpretation of that phrase, has drifted with language does this justify ignoring the underlying principle as obsolete?

One example of substitution "meaning" for principle is the argument that the drafters of the Second Amendment meant muskets, whereas the underlying principle concerns weapons used by citizens for military purposes. Or that the drafters meant whatever statutorily recognized militia the Congress got around to formalizing, rather than the underlying principle that free people have a responsibility for securing a free state that is not wholly dependent on standing armies.

"Meaning" is a means to the end of understanding the principles on which the Constitution was based, it is not an end in itself.

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on January 10, 2014 at 11:56:35 am


Good to see you posting again.
I agree with the difference between "meaning' and "principle." There is a subtlety present with the later that is lost with the former.
Madison (I forget where) warned against dependence upon the changing meaning of language and cautioned that the principles of the constitution would become meaningless were one to do so.
Also, this reliance upon meaning tends to supply ammunition, as it were, to those positivists that assert that there is no "telos" to the constitution - there clearly is, and it is to be found in the principles asserted by the principals.

take care

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Image of gabe
on January 12, 2014 at 14:04:24 pm

How might one "bear" an M1 Abrams?

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Image of jeremiah
on January 12, 2014 at 14:27:06 pm

Simply put, times change but principles don't.

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Image of Barry Hirsh
Barry Hirsh
on January 12, 2014 at 16:03:25 pm

funny, I admit.
However, "bear" does not mean "to carry" but in a very real sense "to present."
Of course, it also means a "big, furry" creature and since the Abrams is anything but "furry" i suppose we will just not be able to use it.

take care

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Image of gabe
on January 12, 2014 at 21:01:01 pm

Mike, I have entered the following excerpt (because) “…the history described by the dissent is beside the point”. I agree here with Will Baude.
You are, by now, familiar with my continued dissent of the federal Court’s encroachment and usurpation leading to “settled law”. For me, the federal Court’s continued personal philosophies rather than the Constitutions ‘prohibitions, enumerated, -- is Constitutionalism, undiluted. If there is a right defined – it is not in the Second Amendment. I refer to the following: U S v. CRUIKSHANK, 92 U.S. 542 (1875) 92 U.S. 542, in reading the decision, the U.S. Supreme Court justices stated that the Second Amendment . . . “Was not a right granted by the Constitution . . . nor dependent upon it. It was an amendment that restricts the powers of the national government” … “A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States.” (And from this the State proceeds to enter its legislative gun rights act.)
I would like to add a word to your sentence: “Under this view, the purpose of the provision/decision fits neatly with the meaning of the legal words.”
Respectfully, John

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John E. Jenkins

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