1688 vs. 1791
In the NYSRPA v. Bruen decision handed down this summer, the Supreme Court ruled that the Second Amendment may not be treated as the red-headed stepsister, as we might say here in the south, of the Bill of Rights. The ruling rejected the two-step interpretation that has been favored by some federal district courts of appeal that allowed matters such as the interest of public safety to be included in the analysis of what is constitutional. The new guidance of the nation’s highest court is that the only permissible analysis is to look at the text of the amendment itself, to be “informed by history.”
This is stated as a corrective against attempts by lower court judges to work through the weeds of balancing the benefits and harms of firearms in private hands on the presumption that judges are trained in the law, but not in matters of public health or sociology. The Second Amendment is thus to be interpreted with individual self-defense as a central consideration, drawing on the previous Heller and McDonald rulings.
Here we have an assertion of the textualist reading of the Constitution, as opposed to the living document approach favored by justices and scholars who identify with the left. But there does not need to be a division of teams here. If a text does not mean what its plain reading says, what security is there to be found in the law? And if we want better meanings to be found in the law, how are we served by asking judges to be creative in their interpretations rather than writing clearer legislation and getting those words enacted?
Call me an adherent of the New Criticism school here for supporting taking the text as it is written. This is especially the case since I side with textualism over originalism as a means of avoiding the Intentional Fallacy that would seek to work out what the intent of the authors of a given law may have been. Some such mind reading may be necessary, but we should always be cautious in moving too far into psychology and out of the words on the page. What the authors were thinking may or may not be discernible, but if they were unable to express themselves precisely and clearly, the burden is on us to correct their work instead of attempting to insert ourselves into their minds.
As is seen in the Bruen ruling, textualism does not exclude observing what came before a given law and what was occurring at its time—thus the line about being informed by history. Since language changes over time, for example, we need to know what a particular word would have meant to a contemporary reader. This relates to the author’s intent only in so far as we must assume that, barring good reasons to conclude the contrary, an author chooses words that best conform to the meaning to be conveyed.
With all of that as context, consider the differences in the texts related to arms in the hands of ordinary people found in the English and American Bills of Rights. In the 1689 statement of rights, a reaction to what were perceived as the abuses of James II, the English Bill of Rights declares that “the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.” The American Second Amendment, by contrast, reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Opponents of gun rights here in the United States would be much better pleased with the English version than the one that is our law, given all the restrictions that they advocate for—and how often they praise countries that still follow the 1689 document for their gun control. But I would ask them to read the text carefully. Do we want to be subjects of a monarch? Do we want only Protestants to have arms for their defense?
The provision of the English Bill of Rights comes in the context of the wars of religion that had raged across Europe since the breakup of unitary Catholic religious domination and declares at multiple points its partisanship in that regard. I am sorry to say that many among the right wing would like to limit rights generally to those who follow Jesus in a manner of which they approve, but surely we on the left understand the value of separating religion and state, even if it means that there can be no confessional test for gun ownership. Some on the right also toy with the idea of monarchy, but once more, I have to hope that the left recognizes the good that democratic republics make possible. And saying that arms should be restricted on the basis of being “suitable to [the] condition” of the person possessing them—i.e., the nobility find being armed less difficult than is the experience of peasants—could not be better phrased to offend the egalitarians on my side of the political spectrum. This leaves “as allowed by law.” English gun control today takes full advantage of this leeway by banning firearms that even California and similar American states have not managed to forbid, among many other restrictions.
All of this is to say that the English text is effectively no protection for the right to own and carry arms at all. The American version permits no such flexibility to our lawmakers. It acknowledges rights that the people have—note that it does not use words like create or grant—and places a limit on what the government may do.
As I have said before, I support the European—including British, prior to the damage done by the Tories—model of general social welfare. But with regard to the subject of individual rights, we on the left side of the pond made the correct choice.