There are a few ways to interpret a law or constitutional provision, and one of those ways is originalism. Originalism can generally be decided into two categories. Original intent, which is interpreting according to some divined intent of the founders, is one of those methods, and though largely disfavored now. More favored is the second method, which is original public meaning, which serves to illustrate what people at the time thought the words meant.
For something like the Second Amendment, for which there has been little case law, it’s relatively important to understand what people thought it meant back when the constitution was first adopted, and in the early years of the Republic. That’s why many of the briefs in Heller, and the opinion itself, cited so many sources that were contemporary with the Bill of Rights in order to uncover the how people understood the words at the time of its adoption.
In one of the weirdest aspects of the Second Amendment debate, it has become acceptable to quote Dred Scottas a legitimate constitutional authority. This is one of the most thoroughly discredited cases in Supreme Court history, there is a run up between this case Korematsu v. United States, 323 U.S. 214 (1944) and Buck v. Bell, 274 U.S. 200 (1927) for most disreputable Supreme Court Case. Dred Scott is considered to be the product of an overly ideological and reactionary judge relying on poor scholarship and weak legal reasoning in an effort to shape public policy.
It is in the context of originalism that one small part of Scott is quoted:
It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
The interest in this passage is not in the value of the ideas presented here, which today we properly recognize today as racist and dreadful, but it tells us that people of the time recognized the right to “keep and carry arms wherever they went” as being within the collection of rights that citizens enjoyed. It tells us that a Supreme Court justice believed that.
Of course, Scott is only a small part of the framework on which the originalist case for the Second Amendment rests. For the rest of it, there probably isn’t any better source now than Heller itself.
More interesting will be the McDonald case, which will rest on the original meaning of the 14th Amendment. There’s a strong possibility the court may finally be looking at overturning US v. Cruikshank, which was another racist and wrongheaded ruling, which gutted the “privileges and immunities” clause of the 14th Amendment, originally intended to protect the civil rights of freed blacks during the Reconstruction Era.
I find it ironic that a lefty blogger who rightfully hates Scott, doesn’t seem to appreciate the opportunity to actually fix a great wrong here with the McDonald case. While Scott was never formally overturned, its holding was essentially rendered moot by the passage of the 13th and 14th Amendments, and isn’t really legally relevant today. But Cruikshank is still valid law, and it’s holding is nearly as racist and disgusting as Scott‘s. It might not have said blacks aren’t citizens, but it at the least said the 14th Amendment didn’t protect any rights they might have had to, you know, not be murdered. Let us hope that the Supreme Court does the right thing and reverses Cruikshank by incorporating the Second Amendment under the Privileges and Immunities clause of the 14th Amendment. I would think that something a lefty could appreciate, even if they don’t much like the Second Amendment.
