Thursday, December 20, 2007

Originalism, Commas, and the Second Amendment

There is a concept in US Constitutional Law called originalism, which says that one should read the US Constitution literally, down to the last comma, to divine and adhere to what the Constitution's authors meant.  This line of thought says that the Constitution is a dead document, incapable of evolving with the times, except by the brute force of a Constitutional Amendment.  I find this concept similar to the one that says one should base morality on a literal reading of a religious text, such as the Bible.  Things have changed a lot in the last few thousand years, so even if you believe the Bible was a perfect source of morality back then, I hope, gentle reader, you agree that some things in it are out of date.

So it was some interest that I read this rather pedantic sounding Opinion piece in the New York Times called Clause and Effect, by Adam Freedman.  His point is that people who have been trying to interpret the Second Amendment to the US Constitution, the one usually called the right to bear arms, may have it all wrong because 
"In the 18th century, punctuation marks were as common as medicinal leeches and just about as scientific...Often, the whole business of punctuation was left to the discretion of scriveners, who liked to show their chops by inserting as many varied marks as possible."

The Amendment is usually written
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.
This is very confusing, especially because of the commas.  Does the first part of the sentence modify "the right of the people to keep and bear Arms, shall not be infringed"?  He argues yes, and what they probably meant was  
“Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.”
He might be right, he might be wrong.  But what we need to do is be guided by the basic principles of the Constitution and apply them to today's world.  Today there are weapons no individual should have, weapons whose possession diminish the security of the state and its citizens.  It seems pretty clear to me that limiting use of such arms is consistent with the spirit of the Second Amendment.  We can debate where to draw that line another time, but let us at least agree that there is a line, and that the right to bear arms is not absolute, independent of what the commas in the statute mean.
And more broadly, let us always use common sense and context when basing a decision on any moral or legal source.


Anonymous said...

Another way of reaching your conclusion: given that nothing human-created is perfect or unchangeable, literal originalism is basically a cargo cult that worships icons of airplanes built from twigs.

However, I am in favor of reading the 2nd Amendemnt to allow, without restriction, anyone to keep an eighteenth-century musket in their home.

eyesopen said...

I agree that nothing that humans create is perfect (in fact I'd argue that perfection itself is impossible), but there are those who will argue, for example, that humans who wrote the Bible were guided by God, and thus exempt from our usual lack of perfection. It would be an understatement to say that I don't find that argument compelling.

But I argue that even if one believes that the writers of the Bible or the writers of the Constitution were deities, one STILL shouldn't practice orginalism because a document 'perfect' for 2000 years ago or 200 years ago will not be 'perfect' today.

Of course everything I say is valid verbatim forever. :)