Sunday, November 3, 2013

Do originalists contradict themselves on the 2nd and 14th amendments?

A few weeks ago, I found an article which accuses Supreme Court Justice Antonin Scalia (and, by implication, originalism in general) of hypocrisy. The article is well written, civil, interesting, and worth a read. The author argues, among other things, that an ideologically consistent originalist view would have to either permit restrictions on any handguns which didn’t actually exist at the time the second amendment has passed, or permit the definition of “citizen” and “person” to evolve from the original 14th amendment understanding. He writes:

“if our understanding of “arms” can evolve (something Scalia clearly sees as acceptable, as he does about instruments for use in application of the death penalty—also in the interview this morning) then I do not see why our understanding of “citizen” and “persons” cannot evolve. And if they cannot, where is the justification for our understanding of “arms” to change?”

The trouble with this is that author uses the phrase “understanding of the word _____” to conflate two very different things: the parameters of a categorical description, and the specific instantiations which fall within those parameters. The definition of a word lays out the parameters, while anything which falls within those parameters is said to be an example of that word.

The parameters of the word “fan”, for instance, may be understood as any machine designed to cool something off, and examples may include a ceiling fan, handheld fan, computer fan, industrial fan, etc. New types of machines may be invented, and based on their design and purpose, they may or may not classify as fans. But the original parameters of the word fan have not changed.

So it is with guns. The word “arms” is a categorical description, not a reference to specific items that existed in 1791. Originalists like Scalia look to the text of the constitution, and the arguments for its passage, to gain insight onto what the parameters of that word were understood to be. In this case, Scalia argues the word “arms” was meant to mean any handheld weapon which could be "born". 

Evolving weapons technologies do not change the definition of arms any more than evolving business technologies change the definition of commerce. It may change the application of that definition by creating new instantiations of commerce which fall within the previously accepted definition. But the definition itself remains fixed. Technological innovations can produce new inventions which nevertheless fall within the same, unmoving parameters of what “arms” are and were commonly understood to mean.

This is very different from widening those parameters to include things which did in fact exist at the time, but were never meant to be encompassed by the words the framers employed. And that is what Scalia argues is happening when people try to stretch the 14th amendment to protect people whom, at the time of the framing, were understood to fall outside the field of people protected by it. Now, I’m not sure I agree with Scalia about the intent of the original wording, and maybe my interpretation of the 14th amendment is more expansive than his. But whoever’s right about that issue, it’s a separate issue from the boundaries of the word arms, so Scalia’s not contradicting himself.

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