Fake originalism and the right to bear arms
The second amendment to the US Constitution provides: “A well-regulated militia, which is necessary for the security of a free state, the right of the people to keep and bear arms must not be violated.”
In some ways, the meaning of this provision is open to legitimate debate. However, one question is answered with complete clarity by the constitutional text. The second amendment protects the right to keep and carry weapons. At least you would think so. Recently, however, the U.S. Court of Appeals for the Ninth Circuit effectively removed the right to bear arms from the text. Notably, the court pretended to base this deletion on the original meaning of the Constitution.
For over two centuries the Supreme Court left fundamental questions about the Second Amendment unresolved. However, in a 5-4 ruling in 2008, District of Columbia ruled against Heller that the second amendment protects a private right not affiliated with the militia to keep a pistol in his home for self-defense. Two years later, the same 5-4 majority in McDonald versus City of Chicago concluded that the fourteenth amendment made the second amendment (which always applied to the federal government) applicable to state and local governments as well.
These decisions are backed by strong legal arguments, each based on evidence of the original meaning of the Constitution and established precedents. But they left many questions unanswered. How far can the government go to restrict the possession of weapons other than the type of pistol at issue in Heller? How much leeway does the government have to deny access to weapons to certain groups of people such as convicted criminals and juveniles? To what extent can the government add regulatory burdens such as licensing requirements to exercising second amendment rights?
Despite considerable disorder in the lower courts, the Supreme Court has refused to answer any of these questions. The main open issue concerns the government’s power to restrict citizens’ right to bear arms. As with many other issues related to the second amendment, there is room for reasonable debate about the exact scope of this right. However, the constitution leaves no doubt about its existence.
A few years ago, the Ninth Circle determined that the second amendment did not protect the right to carry a concealed weapon in public. In its latest 7-4 decision in the Young v. Hawaii case, that court has now taken the next and final step: “There is no right to openly carry weapons in public. Nor does such a right fall within the scope of the second amendment. “Notwithstanding some strange Delphic suggestions that the right to bear arms might be different from the right to bear them in public, the court has removed that right from the constitution.
This aggressive exercise of judicial power is not based on the once fashionable “living constitution,” a fiction that allows judges to amend the written constitution to suit their own political views. At least not openly. Instead, Young is based on false originalism.
Counterfeit originalism comes in several varieties, including living originalism, common good originalism, and living textualism. They all complete the judicial usurpation of authority to change the law under the guise of originalism. Many questions about the original meaning are honestly difficult to answer because the relevant evidence is sparse, inconclusive, or both. However, some arguments are so illogical and without evidence that they represent a hidden form of living constitutionalism. Young’s opinion, which is more than a hundred pages long, is a massive exercise in false originalism.
The majority opinion was drafted by Judge Jay S. Bybee, a lawyer appointed by George W. Bush. He has taught and published widely in the field of constitutional law, and his academic literary skills can be seen in Young. The Tribunal’s handling of the Constitution cannot be attributed to incompetence, negligence, or an inability to understand Judge Diarmuid O’Scannlain’s crushing dissent.
The young majority seem to believe that American citizens are rightly viewed as subjects who can and must rely on a benevolent Leviathan.
The young majority do not even pretend to provide historical evidence to support their claim that the words “the right of the people to. . . Carrying Guns ”does not refer to a right to carry guns in public. Instead, the starting point of the court is Heller’s statement that the second amendment codified an already existing law that can be traced back to England. Young’s genealogy focuses heavily on the 14th century Northampton statute. The text of this law could be understood either as a ban on the threatened exhibition of weapons or as an absolute ban on the public carrying of weapons without the permission of the king. Young regards it as an absolute ban that remained in place throughout English history and then was accepted in America.
Although the law may have been interpreted by English subjects at various times, there is no evidence that American citizens have accepted the legitimacy of such an absolute prohibition on the carrying of weapons in public. Young cites six laws that were enacted at the time the second amendment was passed. North Carolina (1792) is said to have reproduced the English statute almost verbatim, absurdly including its references to the king. Louisiana’s covert transportation ban (1813) didn’t even resemble the English text. The other four all contained restrictive language not included in the Northampton Statute.
Virginia (1786), for example, forbade walking or riding armed “in terror of the country”. Tennessee (1801) forbade being “armed for the terror of the people”. Massachusetts (1795) and Maine (1821) approved the arrests of those “aggressively riding or armed for the fear or terror of the good citizens”. No one could honestly believe that in any of these states (or others) American citizens were prohibited from kicking out of their homes with a gun. Young’s long history of the Northampton statute is a giant red herring.
Young also examines 19th century court decisions to prove what the pre-1791 law included. Some of these rulings upheld bans on the carrying of hidden weapons, while explicitly rejecting the idea that the government could ban both open and concealed carrying. Some courts assumed that the right to keep and carry guns only existed in connection with military service. However, Heller clearly opposed the suggestion that the second amendment contained such a restriction. No court has held Young’s view that the private right to have weapons for self-defense does not extend to carrying them in public. The court’s litany of cases is just another diversionary tactic.
The opinion has other problems as well, including some worrying omissions from the sources. But even at first glance, the majority’s historical argument is little more than an elaborate smoke screen. This shouldn’t come as a surprise. Behind the smoke hides the constitutional text, which the majority prefer not to deal with.
Together with the sham research into the original meaning of the second constitutional amendment, the majority offers this political philosophy: “Protection is the consideration for our loyalty to the government. . . . The king, unable to guarantee the safety of his subjects – from internal or external threats – is unlikely to remain sovereign for long. “
What is the point of this dictum in a statement denying that the second amendment protects the right to carry weapons for self-defense? That American citizens should trust the government to protect them because the alternative is civil war? A more succinct summary of Thomas Hobbes’ defense of absolute monarchy could hardly be given.
The young majority seem to believe that American citizens are rightly viewed as subjects who can and must rely on a benevolent Leviathan. Shortly after the widespread failure of governments across the country to protect their citizens from violent rioters, Young’s Hobbesian view of the social contract was to make friends of civil liberty and the republican government gag.
The ninth circle is now in direct conflict with two of its sister courts. The Seventh Circuit invalidated an Illinois law that categorically prohibited nearly all citizens from carrying a loaded firearm in public. The DC Circuit has invalidated a regulation that had practically the same effect by only granting broadcast licenses under extremely tight circumstances. Both governments have decided not to appeal these decisions, probably in the hope that at least one judge from the 5-4 Heller / McDonald majority will be replaced by a lawyer more like those who prevailed in Young.
If the Supreme Court rewards this strategy by agreeing to the abolition of the constitutional right to take over arms, we will have further evidence of what Justice Samuel A. Alito calls “the deep and potentially incurable corruption of the conception of our legal culture for interpretation of the Constitution ”. In this case, we hope that the judges will at least spare us the false originalism favored by the Ninth Circle. Also, knowing that you are the highest, you can just tell us what the rewritten second amendment says and deal with it.