April 5, 2003

The Right to Keep and Bear ... What? (Pt II)

The Second Amendment Definition of "Arms"
©2003 Alo Konsen
Part I
Part II
Part III
Part IV
Part V

II. Emerson and the definition of "arms"

To define "arms," we can turn to any of three main schools of constitutional interpretation that currently hold sway in American law. To line up with most commentators I will call them the "living document" school, the "framers' intent" school, and the "textualism" school. The Emerson court subscribes to the textualism school, and I think rightfully so.

The "living document" school arose in the 1930s, and advanced the idea of a "dynamic, living Constitution, which changed as social and economic needs demanded."15 As set out by Justice William Brennan16, this view of law says that courts need not defer to legislatures expressing the will of the majority. The text of any law informs its interpretation, but does not limit the interpreter to the bounds of the text's plain meaning. A statute or constitution must be interpreted in light of modern social realities, not of any moment in history. The document must be interpreted to give effect to the principles expressed in the text, but the overarching context is today's social and political scene, not the scene back when the document was written.

I find this theory untenable, mainly because it allows activist judges (both liberal and conservative) to usurp the power to create law, which properly belongs to the legislature. A judge of this stripe sees no problem with twisting the meaning of the text of the law to mean whatever suits his or her fancy, whether the new interpretation makes sense or not. Further, the "living document" school offers precious little guidance on how to assess exactly where the all-important "social realities" are and where they are headed. Under this scheme, there is no need to look for the true meaning of "arms" as it is used in the Second Amendment. "Arms" are whatever society (actually, any sitting judge) says they are.

The "framers' intent" school offers a better method of interpreting the law, but it still fails to pass muster. A "framers' intent" devotee looks backward through history and tries to discern what the legislature meant to accomplish when it enacted a given law. Typically this involves trying to figure out what most of the individual politicians had in mind, as revealed in secondary sources like legislative histories. I find this method unsound too, for two reasons. First, the legislature enacted the text of the law in question (not their intentions), so the proper focus of study should logically be the enacted text. Second, the intentions of the legislators almost certainly varied from person to person, so we can never know for certain what they all thought, whose thoughts carried more weight, and how their "corporate intent" can ever be nailed down.

The "textualism" school is the only game in town ... because words mean things. A textualist concentrates on the only objectively verifiable part of the law: the enacted text. Legislatures enact laws made of words, not their intentions and not society's meaning-of-the-moment. Searching for what the words of the text were understood to mean by the rational, reasonable reader of the time is the only logical, stable, proper method for interpreting the law. As Judge Robert Bork puts it17,

All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like.

In our situation, we must ask "what did 'arms' mean when the Second Amendment was written and ratified, in that society, and in that context?" How would a citizen or judge back then have understood "arms"? Only after we are confident in our answer can we apply it to our own world to predict an outcome. The Emerson court used this method of interpretation, and we will use it too, to discover what "arms" meant to the generations alive near 1787, when the Second Amendment was drafted.

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15 Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2136 (1999).

16 William J. Brennan, Jr., Presentation to the American Bar Association (July 9, 1985), in American Constitutional Law 607, 609 (Mason & Stephenson eds., 8th ed. 1987).

17 Bork, Robert. The Tempting of America, at 144 (1990). See also Justice Antonin Scalia's highly readable and entertaining treatment of his brand of textualism, A Matter of Interpretation: Federal Courts and the Law. (Amy Gutmann, ed.) Princeton University Press, 1997.

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