Originalism and technological changes

Michael McConnell mcconnellm at LAW.UTAH.EDU
Wed Jan 3 08:43:35 PST 2001


I am not an authority on the gun control issue, and thus am a little
hesitant to jump in, but it seems to me that this discussion of assault
weapons points out an interesting conceptual problem. Unlike most other
constitutional provisions, where the historical purpose is essentially the
same as the current purpose (though, as in the case of the Contracts Clause
or the Seventh Amendment, the historical purpose may not be as powerfully
held as it originally was), it appears that the historical purpose of the
Second Amendment is not the same as the current justification for protecting
the right of gun ownership. Correct me if I am wrong, but assault weapons
appear to be useless for hunting or self-defense, but quite useful for
insurrection or para-military style attacks. Here is the problem:

(1) The principal historical justification for the Second Amendment was the
prevention of tyranny by ensuring that there would be an armed populace,
capable of resisting the standing army of the central authorities.

(2) The principal current justifications for gun owning are hunting and
self-defense.

(3) Most of us (am I right?) find the prospect of armed quasi-military
groups, like the so-called militia groups, scary rather than
liberty-protecting. Tim McVeigh is a poor substitute for Ethan Allen. But
some of us are sympathetic to the right of people to bear arms for hunting
or self-defense (and many are persuaded by John Lott's work that certain gun
control measures have the unintended effect of increasing rather than
decreasing gun violence).

I understand how a constitutional textualist deals with this: the amendment
guarantees to "the people" (the same word as in the Fourth Amendment) the
right to "bear arms." This appears to be a substantive right, much like the
freedom of speech. While not absolute, it must be given some bite. I do not
know precisely what the results of this approach would be, but I would
suppose that the right to bear arms can be regulated but not substantially
eliminated, and that restrictions on the right would be evaluated according
to the same sort of skeptical analysis of the strength of governmental
purpose, closeness of fit, etc., that guides much of our constitutional
doctrine. In any event, to the textualist, it does not matter that the
purposes for protecting the right have changed since the founding.

I understand how a -- what is the currently favored word? --
noninterpretivist or Dworkinian deals with this: we decide cases according
to (our) current values, whatever they may be. Thus, our relative sympathy
for hunters and home-protectors, and our assessment of the validity of
Lott's empirical work and similar policy considerations are likely to be
decisive. Constitutional adjudication is informed by essentially the same
considerations that inform legislative judgment.

I understand how an advocate of judicial restraint deals with this: the
constitutional principle seems murky, and there is no relevant interpretive
tradition, so we should give latitude to the democratic branches. (This
leaves open the issue of how the Second Amendment should inform the
judgmentes of a conscientious legislator.)

But if the original constitutional purpose (as opposed to the original
meaning) of the provision guides our interpretation, aren't we driven to the
highly counter-intuitive conclusion that it is unconstitutional to prohibit
the people from bearing assault weapons (which are admirably suited to
resisting tyranny, and equally admirably suited to maiming large numbers of
innocent people for no good reason) but constitutional to prohibit hunting
rifles and arms for self-defense?

If this seems crazy (as it does to me, though I am willing to be educated by
those who have given this whole matter more thought), then isn't most of the
constitutional/historical writing on the Second Amendment beside the point?
(Except, of course, as a matter of historical interest, which I do not for a
moment disparage.)

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: Michael MASINTER [mailto:masinter at NOVA.EDU]
> Sent: Tuesday, January 02, 2001 7:48 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Originalism and technological changes
>
>
> Let me pose the question differently.  Do you know anyone who
> hunts with
> an assault rifle?  Who thinks that its short barrel and large
> clip make it
> useful for shooting something other than people?  Do you know
> anyone who
> thinks that an assault rifle is useful for personal
> protection or crime
> deterrence? Who thinks that it is a good bedside weapon, or perhaps a
> useful sidearm?  Do you know anyone who uses an assault rifle in
> competitive target shooting (and if you do, I would like to discuss a
> match)?
>
> The assault rifle legislation may have only a marginal
> impact, but that
> does not make it irrational.
>
> Michael R. Masinter                     3305 College Avenue
> Nova Southeastern University            Fort Lauderdale, Fl. 33314
> Shepard Broad Law Center                (954) 262-6151
> masinter at nova.edu                       Chair, ACLU of
> Florida Legal Panel
>
> On Tue, 2 Jan 2001, Greg Sisk wrote:
>
> > I don't disagree with Professor Masinter's statements, but
> it doesn't
> > respond to my point about much of the gun-control debate being a
> > matter of political image issues rather than substance.  Of course,
> > he is correct in saying that true military assault rifles are also
> > designed to fire rapidly -- that is, they are fully automatic
> > (continuing to fire bullets as long as the trigger is depressed).
> > Quite independent of any current gun control proposals or the
> > supposed "assault weapons" ban, fully automatic weapons are illegal,
> > that is, they may not be sold or possessed (except under very strict
> > licensing limitations).  In other words, the ban on
> so-called assault
> > weapons is not directed at fully automatic weapons, which
> already are
> > prohibited by other laws.  Instead, the assault weapons ban is
> > directed at rifles that by appearance look like a fully automatic
> > military weapon, even though they functionally are not -- it remains
> > a matter of cosmetics.  Nor is the assault weapons ban directed at
> > semi-automatic weapons (a bullet fired every time the trigger is
> > depressed again), which would describe most rifles and handguns and
> > thus would broadly prohibit most gun ownership (very few politicians
> > openly take that position, at least as yet).  The assault
> weapons ban
> > was a politician's dream, because it allows the supporter to pretend
> > to his or her constituents that a dangerous weapon is being banned;
> > in truth, nothing of significance is eliminated from the fire-arms
> > market by this ban.
> >
> > >Military assault rifles are not designed for accuracy (and
> certainly not
> > >for inaccuracy); they are designed for rapid fire.  Their
> particular
> > >danger arises from their capacity to discharge many rounds
> quickly, not
> > >from their capacity to dicharge them accurately.  Were I
> concerned with
> > >the accuracy of a single shot, I would choose a well
> designed and balanced
> > >bolt action rifle.  Were I concerned with causing the
> maximum harm to the
> > >maximum number of people, I would choose an assault rifle.
> > >
> > >Michael R. Masinter                     3305 College Avenue
> > >Nova Southeastern University            Fort Lauderdale, Fl. 33314
> > >Shepard Broad Law Center                (954) 262-6151
> > >masinter at nova.edu                       Chair, ACLU of
> Florida Legal Panel
> > >
> > >On Tue, 2 Jan 2001, Greg Sisk wrote:
> > >
> > >>  Just as a note, which has some ironic aspects given the debate,
> > >>  military assault weapons -- which are the subject of
> the strongest
> > >>  federal limitations and often tauted by politicians for
> political
> > >>  reasons -- in fact are designed to be somewhat less
> likely to kill
> > >>  than to wound and incapacitate, the reason being that
> in war-time
> > >>  causing injury to enemies is more debilitating because
> the injured
> > >>  soldier's comrades are distracted by attending to him and then
> > >>  transporting him to medical assistance.  The average deer-rifle,
> > >>  subject to the most minimal of gun-control
> restrictions, is a much
> > >>  deadlier weapon, as one of the school shooting episodes
> demonstrated.
> > >>  As ironic and perverse as it may seem, but strangely
> true, more of
> > >>  those shot during that episode would have survived if
> the fire-arm
> > >>  used to commit the crime had been a so-called "assault
> weapon" rather
> > >>  than a deer rifle.  Whatever one's views about gun
> control, we must
> > >>  acknowledge that much of the debate is misguided.  The so-called
> > >>  "assault weapons" ban focuses primarily upon the
> cosmetic appearance
> > >>  of certain firearms, not upon their functional capacities.
> > >>
> > >>
> > >>  >  >        It turns out that fewer than 20-25% of all assault
> > >>wounds inflicted
> > >>  >with firearms today lead to death (see National Safety Council,
> > >>  >Accident Facts).
> > >>  >The fraction is even less for handguns as opposed to
> shotguns.  Do we know
> > >>  >whether this is an appreciable increase -- or for that
> matter an
> > >>appreciable
> > >>  >decrease -- from the lethality of firearms in the late 1700s.
> > >>  >
> > >>  >During that period, infection was the major killer.
> Gunshot wounds,
> > >  > >especially
> > >>  >those that were made through cloth, tended to infect easily.
> > >>Actual piercing
> > >>  >wounds to the viscera would almost always result in
> infection, if
> > >>they did not
> > >>  >kill acutely.  In either case, if you hit your target,
> you tended
> > >>to kill him.
> > >>  >Modern guns are much more lethal acutely, even with
> modern surgical
> > >>  >care, but we
> > >>  >lose far fewer to subsequent infection.  While hitting
> the target
> > >>was a real
> > >>  >problem, it probably did not reassure folks much when the
> > >>expectation was of
> > >>  >slow and very painful death if hit.
> > >>  >
> > >>  >Ed
> > >>  >
> > >>  >Edward P. Richards
> > >>  >Executive Director - Center for Public Health Law
> > >>  >Professor of Law
> > >>  >University of Missouri Kansas City
> > >>  >(816)235-2370 Fax (816)235-5276
> > >>  >richardse at umkc.edu
> > >>  >http://plague.law.umkc.edu
> > >>
> > >>  --
> > >>  Gregory Sisk
> > >>  Richard M. & Anita Calkins
> > >>     Distinguished Professor
> > >>  Drake University Law School
> > >>  2507 University Avenue
> > >>  Des Moines, Iowa  50311-4505
> > >>  515-271-4184
> > >>  greg.sisk at drake.edu
> > >>
> > >>
> >
> > --
> > Gregory Sisk
> > Richard M. & Anita Calkins
> >    Distinguished Professor
> > Drake University Law School
> > 2507 University Avenue
> > Des Moines, Iowa  50311-4505
> > 515-271-4184
> > greg.sisk at drake.edu
> >
> >
>



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