In the landmark case D.C. v. Heller, the U.S. Supreme Court has held that the Second Amendment right “to keep and bear arms” is an individual right. This reading is consistent with the unanimous sentiment of the late eighteenth and nineteenth centuries, as well as the language of the amendment. In a scholarly tour de force that dissects the Second Amendment grammatically, logically, and historically, Justice Scalia’s majority opinion argues that the purposive clause regarding a “well-regulated militia” cannot be construed as contradicting the operative clause: “the right of the people to keep and bear Arms, shall not be infringed.” He then eloquently shows the logical, grammatical and linguistic incoherence of the contrary interpretation, which would effectively mean that this right shall be infringed, even to the point of banning handgun ownership as in D.C.
Notwithstanding Scalia’s painstaking dissection of the issues, gun control advocates and leftist legal scholars have raised their usual canards when attacking a decision grounded in originalist jurisprudence. These themes include (1) accusing the originalist of judicial activism; (2) claiming that the Constitution has always been “dynamically interpreted;” and (3) complaining that the decision ignores “precedent,” usually some controversial twentieth-century activist decision that itself disregarded a century of prior precedent.
The laughable assertion by liberal journalists that the court majority is practicing “judicial activism” by virtue of striking down a DC statute betrays an ignorance that would shame some high school students. By that standard, anyone who supports Marbury v. Madison (1803) is a judicial activist. It is true that this decision might be considered “activist” by some hard-core originalists who do not accept “incorporatism,” the century-old doctrine that the rights enumerated in the Constitution also apply to the states by virtue of the Fourteenth Amendment. This doctrine allows federal courts to rule on whether local statutes violate constitutionally guaranteed rights. As mainstream liberals and conservatives alike accept this doctrine, that cannot be the basis for the accusation of activism.
Activism means more than voiding an unconstitutional state or local law, or prescribing some course of remedy, as such powers have been regarded as proper to the judiciary since the founding. The contrary of judicial activism would not be to uphold every state law, but to exercise “judicial restraint,” judging only whether the law is valid under the Constitution, not whether it is a good or bad policy. When a law is struck down because it is considered a bad law, even though it is constitutionally valid, we enter the realm of judicial activism. The archetype of such activism is Brown v. Board of Education, which did not even attempt a constitutional rationale, but was based on the supposed sociological effects of segregated schools. Miranda v. Arizona is another activist decision, prescribing a procedure of reading a suspect his rights, grounded more in the Court’s sense of fairness than in any constitutional requirement.
It would be hard to classify DC v. Heller as an activist decision, as the ruling makes no appeal to the prudence or justice of gun control laws, but judges only whether it infringes the Second Amendment right to bear arms. The majority opinion is not concerned with policy outcomes, but with establishing the construction of the Second Amendment text based on relevant historical and legal documents. One may disagree with the construction, but that does not make the decision remotely activist.
The accusation of activism is in any case insincere, as the same charlatans who complain that (1) the Court has departed from the meaning of the Amendment also claim that (2) we shouldn’t strive for original meaning, but accept that the meaning of the Constitution changes with time. Simultaneously holding both points is inconsistent and petty. Scalia presents evidence showing that the right to bear arms would have been worthless if it applied only to organized militia, since the federal government controlled the militia and the Bill of Rights was intended to restrain the federal government. Even without his exhaustive argument, the meaning of the Second Amendment should be obvious to anyone remotely familiar with the time, where the individual right to bear arms was widely assumed, and never contradicted. In 150 years of American jurisprudence, no one ever dared suggest that bearing arms was only a “collective” right; indeed, it was a symbol of free citizenship, and awarded even to blacks after their emancipation. Only those disingenuous enough to project their modern liberal views onto eighteenth-century men could deny the Court’s assessment of the original meaning of this right.
Opposing originalism is the idea of a “living Constitution” or “dynamic interpretation” or whatever Orwellian term one prefers to describe the position: “the Constitution means what we say it means.” If the Founders intended the Constitution to be easily changed in its meaning, it is hardly understandable why they took pains to make its amendment so difficult. Anyone familiar with the political philosophy of the time knows that a constitution was considered to be the most fundamental and least-changing aspect of a political state. Chief Justice Marshall likened constitutional interpretation to interpretation of a statute, and there certainly was no theory of dynamic interpretation of statutes current at the time. The law expresses the will of the legislators, which must be respected in its execution and interpretation.
The idea that the meaning of the Constitution changes (based on ideas of people who have read a little philosophy and understand even less) makes a mockery of written constitutions and laws; we would indeed be ruled by the arbitrary will of judges. What saves us from such tyranny is concern for original intention and meaning, which was the common approach of all jurists for most of this country’s history (read Justice Harlan’s dissent in Plessy v. Ferguson). The Constitution may be applied to different circumstances, and jurists may disagree as to how its principles apply to those circumstances, but the principles remain the same.
To be “progressive” often entails having a myopic view of history and contempt for the remote past. History before the social revolution is to be forgotten, except as an object of derision. After ignoring the unanimous sentiment of the eighteenth and nineteenth centuries, liberal scholars contend that the 1939 case U.S. v. Miller deserves a special reverence, disregarding all earlier jurisprudence. Even if such a legal theory were valid, it would not prove what they wish. Miller does not even attempt to construct the Second Amendment, much less did it define the right to bear arms to be a purely collective right. The brief ruling upheld the constitutionality of the National Firearms Act, requiring registration of firearms crossing state lines. No reading of the Second Amendment (not even that of Heller) would invalidate such a law. The Court even noted that the various States have different provisions for the right to bear arms, but “none of them afford any material support for the challenged ruling”.
The Court in Miller viewed the purposive clause of the amendment as defining the scope of arms to be borne. A ‘shotgun having a barrel of less than eighteen inches in length’ did not have any “reasonable relationship” to the legislative purpose of preserving a militia. Yet it does indicate, in its discussion of early American militias, that men were to purchase and maintain their own arms, so this is by implication an individual right, though it is granted for the sake of the common defense. Without debating the merits of Miller, we can see it falls short of denying an individual right to bear arms, though it does circumscribe that right by a “reasonable relationship” to the common defense.
Heller goes further, and includes a common law right of self-defense, citing Blackstone, as the basis of the right to bear arms. This ruling goes deeper than interpreting the Constitution, for it indicates that the rights enumerated in the Bill of Rights are prior to the Constitution, not granted by it. The right to bear arms belongs to the people, not as a gift from the federal government, but as something they held before it existed. The idea that civil rights are morally and temporally prior to the Constitution is an important step toward grounding American jurisprudence in something like natural law. Yet if Scalia scorns jurists who try to be moral philosophers interpreting natural law, he avoids this only by appealing to English common law tradition, which is our last link to the Catholic world and natural law theory, codified as an unquestioned given.