Did The Heller Ruling Do More Harm Than Good?
If Justice Scalia is concerned about people misconstruing his comment that the Constitution is “dead, dead, dead . . .” (in his speech at Southern Methodist University on 1/28/13), he might want to be a bit more careful when he writes opinions like the majority opinion that he wrote in District of Columbia v. Heller, in which the Supremes held that the Second Amendment does not invalidate 21st-century laws that forbid certain advanced, 21st-century weapons. Here is a part of the Scalia opinion: ““the sorts of weapons protected are the sorts of small arms that were lawfully possessed at home at the time of the Second Amendment’s ratification, not those most useful in military service today, so ‘M-16 rifles and the like’ may be banned.” Here is a longer, and even more controversial, excerpt: “It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
Only Small Arms Are Permitted – That was the original INTENT
In essence, what Justice Scalia was saying was that he does not believe the drafters of the Second Amendment intended to allow private citizens to own bombers and tanks, and that he thinks they only intended to protect a right to bear small, 18th-century-sized arms. Yes, the Scalia opinion did us all the favor of affirming that the usage of those small arms was not intended to be limited to usage in a militia, but then he turned around and went all Lefty on us and decided to try to read the minds of the drafters in order to determine whether they intended the Second Amendment literally (as a right to bear ARMS), or more subjectively – and perhaps more to his personal preference (as a right only to bear SMALL arms, 18th-century-style). Or, to put it even more bluntly, Justice Scalia decided to look for the intent of the drafters of constitutional language rather than to look for the meaning of that language, as generally understood by the American people at the time the language was written. A huge distinction, a vastly important one.
Robert Bork Believed Intent Was Irrelevant
If you want the definitive word on this topic, here is an excerpt from “The Tempting of America,” by the late Robert H. Bork, former Judge of the U.S. Court of Appeals for the District of Columbia Circuit, who was possibly the greatest conservative legal-scholar, ever:
“What is the meaning of a rule that judges should not change? It is the meaning understood at the time of the law’s enactment. Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a short-hand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention . . . When lawmakers use words, the law that results is what those words ordinarily mean . . . All that counts is how the words used in the Constitution would have been understood at the time.”
What Is The Significance Of Looking For Intent Rather than MEANING?
What could be clearer than that? OK, let’s test this interpretation. What was meant, in 1789, by the word, “Arms?” You know, the things that the people had the right to bear, a right that “shall not be infringed.” Justice Scalia evidently believes the drafters, when they said “arms,” actually intended that to mean, “small arms, of the type commonly carried by people in 1789,” and that they did not mean, “whatever types of arms one might need for the purposes of engaging (perhaps in a militia?) in battle with either a foreign invader or a tyrannical internal government?
Even Bork Was Confused
Constitutional scholars may note the irony in my citation of Judge Bork in support of an argument that the Second Amendment should be read to protect a citizen’s right to bear rocket-launchers or nuclear devices. The curious fact is that Bork, had he been asked (I can find no record that he was), might have said that Scalia went too far – rather than not far enough – in Heller; Bork had often commented that he thought the Second Amendment did not apply to private arms-usage at all and was intended solely to authorize the arming of militias. True enough; apparently Bork sometimes forgot to read Bork.
The Conservative Bork Looked For Meaning, Not Intent
But in this commentator’s view, the Bork of The Tempting of America was the more sensible and coherent one. I submit that Bork was quite correct in his opinion that laws should be examined for the meaning of the words, not the intention of the drafters, and that Bork’s public comments on the Second Amendment conflicted with his own principles as to constitutional-construction. It is my view that the judicial search for intent is a classic red herring, a license to re-write the Constitution and turn it into the “living document” that Justice Scalia professes to disdain and fear, and that the willingness of the judiciary to look for intent, rather than meaning, has often led to exactly the kinds of mischief and harm that conservatives (often including Justice Scalia) have so often lamented and blamed upon progressives.