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The Bruen Decision Is Not an "Originalist" Interpretation of the 2nd Amendment [1]
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Date: 2023-08-31
Self-proclaimed “originalists” tend to use their alleged doctrine as a fig leaf for enacting their prejudices. In addition to the subject of reproductive autonomy, that’s especially in evidence, it seems, with regard to the Second Amendment. The Supreme Court actually has a set of rules for legal interpretation which enshrines aversion of “originalism”:
https://www.supremecourt.gov/DocketPDF/18/18-9575/102239/20190611092122150_00000055.pdf While this interpretation manual actually departs from the traditional standard of legal interpretation concerning “originalism” – the traditional standard says that if a law appears to have meaning on its face you may not scrounge through legislative history or other “parol evidence” (outside evidence) to try to read the minds of the enactors – its item #3 says that “Every word within a statute is there for a purpose and should be given its due significance.” With respect to the Second Amendment, this means that interpretations that don’t apply the language concerning “A well-regulated Militia” are facially invalid. Take that, Clarence Thomas! And if you really want to see what the Framers thought about that, we have James Madison’s notes:
Mr. MADISON. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been if each County had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution.[Emphasis added.]
The national experience with militia in the recently concluded war for independence had been grossly unsatisfactory, with the state militias being ill-armed, ill-disciplined, and unable to stand in the line of battle. Washington lost most of his battles (though he won the war), but most of those lost battles were lost because the militia was bloody useless. In those days, a “well-regulated militia” needed to show up when called, carry a standard weapon which standard ammunition would fit, and be able to engage in volley fire with their fellow militiamen. This means that they had to use and “keep” a weapon that conformed to an Army standard. And in most states every able-bodied male between 16 and 60 was considered to be in the militia, which meant in turn that when the Second Amendment refers to the “right to keep and bear arms” it confides that right to “the People”, not to “persons”.
That’s another key word in the 2ndAmendment that is defined by context in the Constitution but tends to mean something else today: “people”. Every time the word “people” appears in the Constitution, it is used as a collective noun meaning the population corporately, and in this specific context, the population incorporated as a “well-regulated militia”, which is to say under discipline and subject to such other regulations as the leadership of the militia and the political leadership above them might prescribe. “People” as used in the Constitution never means a plural noun synonymous with an unassorted number of individual persons. Where the latter is meant, the Constitution uses the word “persons” or “citizens” or “the accused”. You might try as an exercise to find every reference to “people” in the Constitution. It’s always used as a collective noun.
Yet another phrase that meant something specific in the 18th C. that it seems not to mean today is to “bear arms”. That was not synonymous in the 18th C. with “to pack heat”. Again, while individuals could “bear arms”, the 2nd Amendment only addresses the right of the people as a corporate body to bear arms, and in that context it meant bearing arms in a military context for a military purpose.
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https://www.dailykos.com/stories/2023/8/31/2190763/-The-Bruen-Decision-Is-Not-an-Originalist-Interpretation-of-the-2nd-Amendment
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