Shotgun News, March 1, 2007
This essay is likely going to bewilder a fair number of you at first. When I tell you that judges have several different methods of interpreting the Constitution, a fair number of you are going to scratch your heads and say, “Aren't they supposed to just read what the Constitution says, and figure out what the Framers meant by that?” That's my view of what they are supposed to do, but it is not the only method that judges use.
It turns out that judges have lots of different approaches to Constitutional interpretation—and sad to say, most of the time, these are simply different rationalizations for the judge upholding or striking down a law based on his personal preferences. I would never say that to a judge, of course. That would be rude—rather like telling the Emperor that his clothes that everyone else says are beautiful, to me seem to be completely invisible.
Originalism is the idea that judges should interpret the Constitution according to how it was understood when the states ratified it in 1789. Ditto for understanding the Bill of Rights as it was ratified in 1791, and the Fourteenth Amendment when it was ratified in 1868. If everyone understood that the Second Amendment protected an individual right to possess small arms, then judges should strike down laws that violate that right today. If, in 1868, there was general agreement that the Fourteenth Amendment extended the protections of the Second Amendment to apply to the states, then judges should strike down state laws that violate that right—as that right was understood in 1868.
Originalism as a theory has its problems. It is sometimes difficult to figure out exactly what the Framers intended. Unlike the Constitution itself, where the finest minds in America labored for many weeks to clarify exactly what it was supposed to do, the Bill of Rights (including the Second Amendment) was rushed through Congress, with surprisingly little debate or discussion on some of the more controversial clauses. Some legal historians now argue that determining the authors' original intent is extremely difficult, but determining original meaning—what the people of that time understood a particular clause or phrase to mean—is quite a bit easier.
As an example, if you look at the laws in effect in every state in 1789, you won't find any laws that prohibited concealed carry of firearms. Nor will you find any laws that regulated transfer of firearms between citizens. (You will find laws in some states that regulate transfer of guns to slaves, free blacks, and Indians.) You can make a pretty strong case from this absence of laws that gun ownership was an individual right of every citizen.
I haven't quite made up my mind on the original intent vs. original meaning argument. I do believe that originalism—the belief that the Constitution's meaning should be read as frozen in a particular year—is the only valid way to interpret the Constitution. Why? Our Constitution is a form of superlaw. It binds Congress, and through Article VI, all judges, federal and state, to treat the Constitution as the supreme law of the land. Congress and the states may not pass laws that are contrary to the Constitution, and judges are similarly bound to make decisions that are consistent with the Constitution. If the Constitution is the framework to which all laws must conform, then the Constitution is a form of contract across the generations.
Think of the Constitution as the wood frame of a house; you can nail or screw more wood to the frame without fundamentally changing its form. Most prudent people, however, before removing any of the existing frame of the house, would think long and hard about it. They might even bring in a structural engineer to consult before changing the framework.
One of the alternatives to originalism is the concept of the Constitution as a living, breathing entity—something that changes as our needs for it change. The late Supreme Court Justice William Brennan explained it this way: "The genius of the Constitution rests not in any static meaning it may have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and present needs." In essence, the original meaning of the Constitution in 1789, 1791, or 1868—the “static meaning...in a world that is dead and gone” is less important than how judges today can use the principles of the Constitution to produce results that the Framers might well have found ridiculous, or even dangerous.
Now, some of you are probably asking: why do we need all this “adaptability” that lets judges ignore the Constitution's original meaning? It might well be that certain aspects of the Constitution and its amendments, as it was understood in 1789, 1791, or 1868, don't make much sense today. Fortunately, the Constitution has a provision for the people to amend it as our needs change. The amendment process isn't easy, but it isn't impossible, either. We amended the Constitution to abolish slavery (1866), protect the rights of freed slaves (1868), grant the vote regardless of color (1870), provide for a federal income tax (1913), give women the vote (1920), prohibit alcohol (1919), repeal Prohibition (1933), give the vote to 18 year olds (1971) and a dozen other, less controversial changes. Of course, to amend the Constitution requires pretty general agreement: two-thirds of both houses of Congress, and three-quarters of the states.
Justice Brennan's “adaptability,” however, doesn't require general agreement. All it requires is a majority of nine members of the U.S. Supreme Court to change what our Constitution means. This is so much easier than persuading two-thirds of Congress and three-quarters of the states! Indeed, five justices of the Supreme Court, by deciding that originalism is a “meaning...from a world that is dead and gone” can and do overrule Congress, state legislatures, and the original intent of the Constitution. Power: it's wonderful, if you have it.
The living, breathing, constantly mutating Constitution was very fashionable for many years. Indeed, originalism almost disappeared from the federal courts for several decades. For those who are interested, Justices Scalia and Thomas are among the strongest advocates for originalism on the U.S. Supreme Court. Alas, Justice Scalia advocates more strongly for originalism than he follows it. Justice Thomas has been a pretty consistent originalist on the Court, even when it means that he must uphold laws that he considers Constitutional but “uncommonly silly.”
Originalism as an interpretive model seems to be coming back in a rather big way—to the point that even liberals, such as Professor Jack M. Balkin of Yale University Law School, are having to defend abortion rights based not on that living, breathing Constitution, but by arguing that originalism provides a valid basis for such liberal causes as abortion.
Perhaps more to the point of gun rights, gun control advocates have, for most of the twentieth century, argued for the living, breathing Constitution interpretive model. The reason wasn't hard to find; it was very difficult to argue for restrictive gun control laws based on what laws were in effect in 1789, 1791, or 1868, unless you brought up the race-based gun control laws.
While these laws might have been useful for defending the gun control position, it would have drawn uncomfortable attention to what drove the modern gun control movement. As gun control advocate Robert Sherrill admits in his very entertaining book The Saturday Night Special, “The Gun Control Act of 1968 was passed not to control guns but to control blacks, and inasmuch as a majority of Congress did not want to do the former but were ashamed to show that their goal was the latter, the result was that they did neither. Indeed, this law, the first gun-control law passed by Congress in thirty years, was one of the grand jokes of our time.”
It is a pretty good sign of how powerfully originalism has made a comeback that gun control advocates for the last ten years have been struggling to find an originalist defense of their position. First, historian Michael Bellesiles published a number of scholarly papers and a book that fraudulently claimed that restrictive gun control was common in the Colonial period, Now, historian Saul Cornell has a new book out (A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America) that, according to press coverage and reviews, seems to admit that the right to bear arms was individual in nature, but for the benefit of the government, and that the Second Amendment does not protect such a right. Criticism of Cornell's argument has been pretty strong. As Dave Kopel observes about Cornell's use of St. George Tucker's 1803 commentary on the U.S. Constitution: “Cornell has built his argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell's thesis.”
All this struggle to find an originalist basis for restrictive gun control! Originalism must be coming back!
Clayton E. Cramer is a software engineer and historian. His next book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), will be available in bookstores in mid-January. His web site is http://www.claytoncramer.com.
 “About Us,” Brennan Center for Justice, http://www.brennancenter.org/article.asp?key=9, last accessed January 27, 2007.
 U.S. Const., Art. V.
 Lawrence v. Texas, 539 U.S. ____ (2003), (J. Thomas, diss.), available at http://news.findlaw.com/hdocs/docs/scotus/lwrnctx62603opn.pdf, last accessed January 27, 2007.
 Jack M. Balkin, “Abortion and Original Meaning,” Yale Law School Public Law and Legal Theory Working Paper No. 119, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925558, last accessed January 27, 2007.
 Robert Sherrill, The Saturday Night Special (Charterhouse, 1973), 280.
 Michael A. Bellesiles, “The Origins of Gun Culture in the United States, 1760-1865,” Journal of American History, 83:2 [September 1996], 425-55; Michael A. Bellesiles, "Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794," Law & History Review 16:575 (1998); Michael A. Bellesiles, Arming America: The Origins of a National Gun Culture (New York: Alfred A. Knopf, 2000).
 “Saul Cornell interview at Buzzflash,” http://armsandthelaw.com/archives/2006/09/saul_cornell_in.php, last accessed January 27, 2007.