Thirty or forty years ago conservatives started maintaining that “originalism” was the only way to properly interpret the Constitution. This meant that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended when the charter was adopted. This interpretive method, according to its proponents, gave a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant went, could judges remain neutral.
Originalism, however, never passed its beta test. Its practitioners quickly realized that uncovering one single intent from the incomplete historical record of the Constitution’s drafting and adoption was impossible. Worse, the ability to ascribe a single intent to the myriad framers and the many more adopters was mere fiction.
With these shortcomings apparent, originalism morphed. Now it was not original intent but the original meaning of the Constitution’s words that should control a constitutional decision’s outcome. This set a jingle of judges jiggling off to ancient dictionaries. They found, however, that the lexicographic business at the end of the eighteenth century was, to say the least, a bit sketchy. Samuel Johnson had published his dictionary in 1755, but his definitions were as much prescriptive as descriptive. That is, in the opinionated Johnson’s opinion, he listed what a word should mean, not necessarily what it did mean to all or even most English speakers of the day. And, of course, what really should matter for the United States Constitution is what words meant in America, not England. This is made more difficult because the first relatively complete American dictionary of English was not published until 1828, some four decades after the Constitution was adopted.
So, another morphing was needed. Conservative judges now would simply pronounce that the constitutional text controls without ever referring to the original meaning of the words. This approach is evident in Supreme Court Justice Samuel Alito’s opening address to the Federalist Society convention last fall. He paid tribute to the Supreme Court’s 2008 decision of District of Columbia v. Heller guaranteeing an individual’s right to own guns. Alito criticized Justice Breyer’s dissent in that case. Breyer had proposed a balancing test that would weigh self-defense against public safety. Alito stated that if a judge uses such a balancing test, the balance will almost always come to rest where the judge wants it to. Instead, Alito told this conservative group, “Heller, I am sure you know, holds that the Second Amendment actually means what it says.”
This is not the place to trace the history of the Second Amendment’s interpretation or what it now does or does not mean. Instead, I am struck by the implications of Alito’s statement. In essence he says that those who would allow some gun control are using Breyer’s balancing test, and that means that they are relying on their own preferences rather than adhering to the Constitution. The conservative majority in Heller, Alito maintains, was not following individual preferences but was simply reading and enforcing the words as written. We in the majority are Constitutionally pure (he implies); the dissent is not. (Thought experiment: For how many of the justices in the majority did the outcome in Heller fail to coincide with their individual preferences?)
But how should we interpret the words as written? The Second Amendment reads: “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.” I don’t mean to delve into those opening “militia” words about which much has already been written. (Reports state that that first clause is not reproduced in the lobby of the NRA headquarters, only the last part of the provision. Why is that?) Instead, I ask whether there is one, single unambiguous meaning for “the right of the people to keep and bear arms, shall not be infringed”? (I will also ignore the intriguing question of why that last comma exists.)
For Alito the Second Amendment words say unambiguously that individuals have the right to own guns. Period. Full stop. The end. First, nowhere does the provision expressly grant rights to individuals as Heller held it did. It states that it is a “right of the people.” Wouldn’t the Amendment more clearly have granted an individual right if it had said, “No one’s right to keep and bear arms, shall be infringed”? (Okay, we’ll keep the mysterious comma.) On its face, then, the provision grants a collective right, not an individual one.
Neither does the text state the right to “own.” Instead it says “keep and bear.” Does “keep” mean the same as “own”? Have you never kept something without owning it? And you can keep an object in many places. I keep my boat at the marina. I keep my tools at work. If a law required me to remove my Winchester or Glock from my home and store it at an armory, wouldn’t I be keeping a gun at the armory?
The Second Amendment right, however, is not just to “keep” guns; it is to keep and bear them. Why the conjunction? The right is not just to keep but to keep and somehow use. “Use,” however, is not the word in the text. Instead, it specifically reads “bear.” That could imply that only those arms are protected when they are borne. And what does it mean to “bear arms”? What did it mean then? What does it mean now? Do we “bear arms” outside the military? When I go deer hunting, do I “bear arms”? (If so, don’t hunting seasons and other hunting restrictions infringe on my right to keep and bear arms?) When I grab the revolver because I think I hear a burglar, do I “bear arms”? Did Aaron Burr and Alexander Hamilton “bear arms” in their famous duel? When I drunkenly point a pistol at my spouse during an argument, am I “bearing arms”? (That last one was a hypothetical; the wife and I never argue.)
Furthermore, the Amendment does not directly refer to guns. It reads “arms.” The Supreme Court shrugged off an originalist notion that “arms” must be limited to eighteenth century weapons. In this instance, Heller allowed the word “arms” something other than an originalist meaning, but then how are we to decide what arms are now included in the protection? Perhaps the 1828 Webster’s dictionary would provide an approximation of what is meant. If so, “arms” are defined there as “Weapons of offense, or armor for defense and protection of the body.” If a rifle (clearly a weapon of offense) is protected, why not a machine gun, a flamethrower, a cannon, a killer drone, a switchblade, and so on? Aren’t they all “weapons of offense”? Does the text really make it simple to decide what kinds of firepower and killing machines are protected?
Finally, the Second Amendment on its face does not create a right. Instead, it indicates that a particular right is not to be violated. This, of course, only raises the question, “What was that right?” It is not spelled out in the Constitution. We have to look outside that document to find it.
I am not suggesting answers to these various questions nor that Heller’s outcome was wrong (well, maybe, but I am warning that interpreting the Constitution is not as simple as Alito would have us believe. Alito seems to say, “Just read the words and you can understand the right.” I am suggesting, instead, that we remain skeptical when a judge or anyone else states that the other guy’s method of constitutional interpretation is really just a disguise for personal preferencs, but his method is pure and neutral and keeps out personal preferences. Heller was not decided, in spite of Alito’s implications, without many, many interpretive choices, and perhaps, just perhaps, those choices allowed for personal preference. And maybe, just maybe, practitioners of originalism and its cousin, textualism, are not as innocently disinterested in the outcomes as they pretend to be.