For many of us it is frustrating to understand how the 2nd Amendment could not apply to the civilian ownership of firearms. However, I have spent this semester in a graduate level class studying the differing theories of constitutional interpretation and the revelation of my scholastic endevors is that the Constitution has wide variations of meaning dependant upon the theory of interpretation utilized by the individual court justice. I thought I would go over some of the most predominant theories and how each applies to the Heller ruling.
Originalism:
- Originalism is the theory of interpretation that most members of this board would lean towards. It is based upon the use of historical scholarship to understand the intended meaning of the framers in order to decide a constitutional question. In terms of this theory it is easy to see that the framers intended for all civilians to be armed with firearms in order to protect their state and nation from external foes and internal tyranny. The "militia" clause being added to stress the ability of the civilian populace to quickly form organized military units. As such the guaranteed "arms" are weapons of military capability and their suitability to sporting uses is of no consequence.
- It should also be noted that under this originalism interpretation the 2nd Amendment guarantee is only a prohibition of federal restriction as intended by the framers. The application of other amendments on a state level has been facilitated by the manipulation of the 14th Amendment, passed after the Civil War. It can be argued that as the framers imagined that a citizens "arms" would be guaranteed on a state level through state constitutions, the 2nd Amendment should similarly be incorporated through the 14th Amendment due to the states rejections of the right.
Textualism
-Textualism (or contextual) is more concerned with approaching questions of constitutional interpretation through linguistic analysis. The question at hand then is "what does the text say?" The clause in question contains is a frame with provides clear core meanings and fuzzy "fringe" meanings. In the case of Heller the importance of the relation between the two clauses of the 2nd Amendment will be the important question at hand. The interpretation of the word "militia" is of the most importance. Then whether "the right to bear arms" is dependant and neccessary on the "well organized militia." In practical application the textualism theory is almost never used on its own. In most cases it is blended with an originalist theory.
Living Constitution
-The living constitution (or developmental) theory has been at the heart of all the controversial judicial activism decisions over the last century. The question for this theory is "what do the words of the constitution mean in our time?" Under this theory past interpretations or intended meanings are invalid as they no longer reflect the prevailing standards and values of our modern society. At the heart of this theory is the concept of "human justice" which can best be described as a bleeding heart perspective which devalues the importance of individual choices by emphasising the effect of socio-economic causation. In the case of Heller this theory is the greatest enemy for 2nd Amendment rights. It will be argued that at its adoption the civilian militias of the states were fundamental to the defense of our nation, but the existence of the National Guard and varios national Armed Forces has removed the quintecential "minute man" from the equation. It will also be argued that our society has advanced past the need for "vigilanteism" and that gun control is necessary for the furtherance of our "peaceful society." Interestingly enough this interpretation in every other usage has been utilized in every prior occassion to further the rights of the individual. An unbiased usage of this theory removed from its foundational liberal ideology would result in the expansion of our 2nd Amendment rights with regards to the Heller decision.
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It is important to note that regardless of your idealism with regards to constitutional interpretation, these methods/theories of interpretation are merely vehicles for the realization of justices individual political ideology. Originalist and some textualist justices are such because they realize that these theories will yield decisions in line with their conservative political ideology. Developmental and some textualist justices are such because they realize that these theories will yield decisions in line with their liberal ideologies. Even those of you on this board who claim to hold one of these theories of interpretation are only doing so (unconciously) because it will yield the decisions you desire. The objective justice striving for truth and justice within the context of the constitution is an endangered species.
Originalism:
- Originalism is the theory of interpretation that most members of this board would lean towards. It is based upon the use of historical scholarship to understand the intended meaning of the framers in order to decide a constitutional question. In terms of this theory it is easy to see that the framers intended for all civilians to be armed with firearms in order to protect their state and nation from external foes and internal tyranny. The "militia" clause being added to stress the ability of the civilian populace to quickly form organized military units. As such the guaranteed "arms" are weapons of military capability and their suitability to sporting uses is of no consequence.
- It should also be noted that under this originalism interpretation the 2nd Amendment guarantee is only a prohibition of federal restriction as intended by the framers. The application of other amendments on a state level has been facilitated by the manipulation of the 14th Amendment, passed after the Civil War. It can be argued that as the framers imagined that a citizens "arms" would be guaranteed on a state level through state constitutions, the 2nd Amendment should similarly be incorporated through the 14th Amendment due to the states rejections of the right.
Textualism
-Textualism (or contextual) is more concerned with approaching questions of constitutional interpretation through linguistic analysis. The question at hand then is "what does the text say?" The clause in question contains is a frame with provides clear core meanings and fuzzy "fringe" meanings. In the case of Heller the importance of the relation between the two clauses of the 2nd Amendment will be the important question at hand. The interpretation of the word "militia" is of the most importance. Then whether "the right to bear arms" is dependant and neccessary on the "well organized militia." In practical application the textualism theory is almost never used on its own. In most cases it is blended with an originalist theory.
Living Constitution
-The living constitution (or developmental) theory has been at the heart of all the controversial judicial activism decisions over the last century. The question for this theory is "what do the words of the constitution mean in our time?" Under this theory past interpretations or intended meanings are invalid as they no longer reflect the prevailing standards and values of our modern society. At the heart of this theory is the concept of "human justice" which can best be described as a bleeding heart perspective which devalues the importance of individual choices by emphasising the effect of socio-economic causation. In the case of Heller this theory is the greatest enemy for 2nd Amendment rights. It will be argued that at its adoption the civilian militias of the states were fundamental to the defense of our nation, but the existence of the National Guard and varios national Armed Forces has removed the quintecential "minute man" from the equation. It will also be argued that our society has advanced past the need for "vigilanteism" and that gun control is necessary for the furtherance of our "peaceful society." Interestingly enough this interpretation in every other usage has been utilized in every prior occassion to further the rights of the individual. An unbiased usage of this theory removed from its foundational liberal ideology would result in the expansion of our 2nd Amendment rights with regards to the Heller decision.
*****
It is important to note that regardless of your idealism with regards to constitutional interpretation, these methods/theories of interpretation are merely vehicles for the realization of justices individual political ideology. Originalist and some textualist justices are such because they realize that these theories will yield decisions in line with their conservative political ideology. Developmental and some textualist justices are such because they realize that these theories will yield decisions in line with their liberal ideologies. Even those of you on this board who claim to hold one of these theories of interpretation are only doing so (unconciously) because it will yield the decisions you desire. The objective justice striving for truth and justice within the context of the constitution is an endangered species.
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