GUNS AND CONSTITUTIONAL ORIGINALISM

 

Cranky’s taking a break

From verse for a day
But have no sorrow
Verse will return
Likely tomorrow

Two barriers prevent effective, meaningful, and pervasive regulation of guns in the United States. The first is a deeply held political belief that guns equal freedom. This ideological stance was not particularly entrenched for much of the nation’s history. Its current widespread viability can be attributed to the National Rifle Association’s efforts and hardline propaganda dating back to the 1970s.

The second barrier to effective gun regulation is the oddly worded Second Amendment to the U.S. Constitution and its judicial interpretations.

          This summary is focused primarily on the second barrier, the Constitution’s Second Amendment. The first barrier, the political belief that guns equal freedom, would require a thorough examination of the national psyche and perhaps multiple sessions with a national psychiatrist.

          Removing the Second Amendment as a major barrier to effective gun regulation could take one of three approaches.

          First, the Constitution itself could be amended by eliminating the Second Amendment or by clearing up its weird wording (principally the militia reference) and explicitly narrowing its scope. This would be the most direct approach but also the most formidable. Amending the Constitution on a contentious issue is an uphill, long-term endeavor.

         Second, the currently popular and close-to-dominant originalist avenue to constitutional interpretation could be curtailed. In general, originalism mandates interpreting the words of the Constitution with their meanings at the time of their adoption. At the extreme, this can lead to a brain-dead document that is a barrier to meaningful action on modern problems.

         Putting originalism back in its cage would also be a long-term formidable endeavor, but perhaps a bit more practical than the amending route. Outside of changing the minds of current Supreme Court Justices, the approach would require waiting on the departure of current originalists and appointing more realistic Justices in their place. Of course, this also requires like-minded Presidents and Congresses.

         The third approach to lessening the current rigidity of the Second Amendment is to take the opposite view of originalism and go all in on the concept. Constitutional provisions can only mean what the words meant when they were adopted? Then “arms” in the Second Amendment can only refer to ye ol’ flintlock and similar artifacts. “Arms” do not include AR-15s and other modern weapons, which thus are not covered by the Second Amendment.

         Of the three approaches to reducing the Second Amendment barrier to effective gun regulation, the second seems the most realistic. But re-educating current Justices on the absurdity of strict originalism and waiting on the appointment of less narrow-minded new Justices will take some time.

         Meanwhile, work could proceed on the first barrier to effective gun regulation--the guns equal freedom equation—and the national mental therapy needed to put this historical aberration in its place.