Originalism and technological changes

Randy Barnett rbarnett at BU.EDU
Wed Jan 3 16:29:52 PST 2001


Michael raises some methodological issues that I want to underscore since
they are rarely addressed explicitly in the literature on the 2d Amendment.

> 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.

This is one of the principal ways individual rights typically approach this
question.  They have engaged in historical analysis largely in response to
the historical claim that the 2d Amendment was originally intended to
protect state militias and their alleged successor the National Guard.
Opponents of an individual rights interpretation largely ignore the textual
analysis except to claim--and this is a very large part of their overall
case--that the preface QUALIFIES somehow the right it precedes.

> 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?

Don Kates and I made this point in our 1996 Emory Law Journal article:  That
those critics of the individual rights position who focus almost exclusively
on its militia-protective purpose have not thought through the implications
of their argument.
>
> 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.)

No, here I disagree.  For most all of the individual rights scholarship that
goes beyond text to history (often in response to the historical
militia-centric conception we grew up with in law school) is a focus on
original MEANING, not original intent or purpose.  Did the terms  "right"
"people"  "keep"  "bear" or "arms" mean something different then, as is
sometimes alleged, than they do today.  Of course, understanding the
original purpose of the 2d Amendment informs this inquiry
circumstantially-and it must be discussed since collective rights theorists
have emphasized it so heavily--but it is not thought to limit or qualify the
original meaning of the Second Amendment.  In sum, the individual rights
position is almost always originalist-textualist with the originalism being
original meaning, not intent--whereas the collective rights position is a
part textualist (the preface) but hardly ever intratextualist, and its
originalist component is almost invariably intentionalist and meant as a
reductio ad absurdum for either the individual rights position or on
originalism generally.  (As in, "you would not want to adhere to the
original intent because it would justify X").

Randy



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