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Untangling constitutional originalism and gun control (oped Tribune)


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Author is a retired history prof from Northwestern. I haven't read it yet, but the first sentence indicates that he's pretty proud of what he wrote ... by the time I am finished, I bet I'll be happy he's no longer teaching college students about history ...

 

 

http://www.chicagotribune.com/news/opinion/ct-oped-0326-guns-20100326,0,5647468.story

 

Untangling constitutional originalism and gun control

But first put down your Glocks, shotguns, revolvers, submachine guns, etc.

 

By Thomas William Heyck

March 26, 2010

 

I've seen the light! After many years of believing that the U.S. Constitution should be made relevant to modern society, I've been converted by the arguments of Supreme Court Justice Antonin Scalia, whose brand of originalism (often called "strict construction") clearly and decisively settles all the issues of gun control.

 

You don't actually have to wear a tricorn hat and powdered wig to agree with Scalia's theory of originalism, but I've found it helps. And when you follow his reasoning, you will see that the right to keep and bear muzzle-loading flintlock arms is absolute. So I personally am ready to don my tricorn and go to the barricades to defend my flintlocks — some of which, I admit, are reproductions — and to carry them into buses, restaurants, Starbucks, public museums and classrooms.

 

But we have to be sure that our form of originalism is the correct one. Scalia rightly says he never uses the phrase "original intent." Instead, we have to stick scrupulously to the actual words the Founding Fathers used — no more and no less. Trying to decipher the Founding Fathers' intent, of course, opens the way to imposing your own interpretation on the words of the authors of the Constitution — that awful judicial activism which is the cause of all bad things.

 

We have to determine exactly what they meant in the 18th century, not what we might mean by those words. Even though our society and culture have changed enormously since the late 18th century, we have to avert our eyes from what we think the Founding Fathers might have said about laws and institutions in our own chaotic times. We must put ourselves in their minds and see the meanings of the words precisely as ordinary people way back then saw them.

 

True, the Second Amendment is a tad ambiguous. The phrase with which it begins does not fit with the last part: "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." That first phrase about "a well-regulated militia" only confuses things. The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does). That way, we get a little wiggle room to focus on the part that counts: "the right of the People to keep and bear arms shall not be infringed."

 

If we follow this simple principle, as Scalia and other originalists argue, then it is obvious that the right to keep and bear muzzle-loading flintlock arms is absolute. And the muzzle-loading weapons to which we have a divinely established right can be muskets, rifles, shotguns and pistols, and some of them can even be double-barreled, because the people of the 18th century knew about all of those.

 

But neither center-fire weapons nor even percussion (or cap-and-ball) muzzle-loaders (not invented until the 19th century) were conceivable to the Founding Fathers. Of course, when they said "arms," they also had in mind hatchets, tomahawks, swords, pitchforks, cudgels and the like, which certainly we the people may own and carry. I assume all red-blooded patriots already do.

 

But flintlock guns are the big issue. This causes quite a problem for tea partyers, Minutemen and backwoods militia who think that they need to be as well-armed as the U. S. Army. They apparently believe that the intention of the authors of the Second Amendment was to encourage a sort of perpetual preparation for revolution. The problem is that flintlock muzzle-loaders are notoriously slow to load and fire and so, while tough on rabbits, cannot stand up against the local police or even mall cops, much less the U.S. Army. Thus, our supervigilant friends want to arm the citizenry with weapons as powerful as the government's forces (with assault rifles, machine guns, Humvees, artillery, tanks and the like). Shame! Shame! They commit the "original intention" fallacy, which we know opens the way for interpreting the Constitution any way you want. We Scalia-like originalists are sticking to our flintlocks.

 

So there you are: By their very words the Founding Fathers plainly meant to protect the right of every person to own and bear muzzle-loading flintlock arms. But we true originalists logically cannot see any constitutional prohibition of governmental regulation of center-fire weapons, whether they be revolvers, assault rifles, automatic or pump shotguns, submachine guns, Glock automatics, or whatever. This truth will upset the arms industry, the drug gangs, prospective terrorists, the National Rifle Association and most gun nuts — and Justice Scalia himself, an avid hunter. But that's the inescapable deduction from Scalia's own irrefutable originalist logic.

 

Thomas William Heyck is professor emeritus of history at Northwestern University.

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I am really getting tired of this same old discredited argument.

By the faulty logic used by this professor emeritus of Northwestern University, the First Amendment rights of Professor Thomas William Heyck are limited to the media that was available at the time the First Amendment was written.

 

No printing presses other than hand cranked, no internet, and certainly no radio or television.

By his standards we are not even reading his illogical drivel.

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Before I read the rest, I'm posting my first reaction.

believing that the U.S. Constitution should be made relevant to modern society,

 

Unless you're talking about amendments ratified by three fourths of the state legislatures or three fourths of state constitutional conventions, you clearly have nothing to say worth reading. I'm not kidding about this. You are not qualified to teach history. You ought to be required to take a remedial course.

 

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. "

 

--Article Five of the Constitution of the United States.

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I am really getting tired of this same old discredited argument.

By the faulty logic used by this professor emeritus of Northwestern University, the First Amendment rights of Professor Thomas William Heyck are limited to the media that was available at the time the First Amendment was written.

 

No printing presses other than hand cranked, no internet, and certainly no radio or television.

By his standards we are not even reading his illogical drivel.

 

 

Honestly, I don't think Prof. Heyck believes in that kind of constitutional interpretation.

 

What he was doing, instead, is criticizing Antonin Scalia by trying to make him look self-contradictory.

 

What the Professor does have, however, is an exceedingly narrow ... perverse even ... view of strict constructionism.

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"The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does)."

 

I have heard this argument over and over since Heller. I offer that those who make it have never read the decision. If they had, they would not embarrass themselves by saying such a thing.

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Before I read the rest, I'm posting my first reaction.

believing that the U.S. Constitution should be made relevant to modern society,

 

Unless you're talking about amendments ratified by three fourths of the state legislatures or three fourths of state constitutional conventions, you clearly have nothing to say worth reading. I'm not kidding about this. You are not qualified to teach history. You ought to be required to take a remedial course.

 

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. "

 

--Article Five of the Constitution of the United States.

+1 for that Don. Great big hammer just hit a great big head of a tiny nail.

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The supreme court didn't mention the flint-lock musket in it's ruling. It used the term what ever is comonly used today. This meaning handguns, rifles, shotguns, crossbows etc. It didnot refer to the weaponry at the time of it's writing.
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The supreme court didn't mention the flint-lock musket in it's ruling. It used the term what ever is comonly used today. This meaning handguns, rifles, shotguns, crossbows etc. It didnot refer to the weaponry at the time of it's writing.

 

The word "musket" is mentioned several times (10 times), in the opinion and both dissents.

 

But you're right ... it didn't define "arms" exclusively as 18th century weapons. The opinion actually referred to Prof. Heyck's [tongue in cheek] argument as "bordering on the frivolous." That's Supreme Court speak for "foolish."

 

Here is the part of the opinion of most relevance to this thread:

 

Some have made the argument, bordering on the frivolous,

that only those arms in existence in the 18th century

are protected by the Second Amendment. We do not interpret

constitutional rights that way. Just as the First

Amendment protects modern forms of communications,

e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,

849 (1997), and the Fourth Amendment applies to modern

forms of search, e.g., Kyllo v. United States, 533 U. S. 27,

35–36 (2001), the Second Amendment extends, prima

facie, to all instruments that constitute bearable arms,

even those that were not in existence at the time of the

founding.

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I am really getting tired of this same old discredited argument.

By the faulty logic used by this professor emeritus of Northwestern University, the First Amendment rights of Professor Thomas William Heyck are limited to the media that was available at the time the First Amendment was written.

 

No printing presses other than hand cranked, no internet, and certainly no radio or television.

By his standards we are not even reading his illogical drivel.

Excellent comparison, hope you don't mind if I steal that analogy because frankly I never thought of it that way myself with regards to the 1st amendment.

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I am really getting tired of this same old discredited argument.

By the faulty logic used by this professor emeritus of Northwestern University, the First Amendment rights of Professor Thomas William Heyck are limited to the media that was available at the time the First Amendment was written.

 

No printing presses other than hand cranked, no internet, and certainly no radio or television.

By his standards we are not even reading his illogical drivel.

Excellent comparison, hope you don't mind if I steal that analogy because frankly I never thought of it that way myself with regards to the 1st amendment.

 

 

Plagiarize away. As you can see from GFs post it was hardly an original thought.

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Unless he's simply become senile, the Professor isn't confused on this issue and knows full well he's mischaracterizing the principle of originalism. But he's using sarcasm and belittlement so those among the pedestrian public will shy from originalism out of fear they, too, will be ridiculed by their intelligentsia "betters."

 

Heyck has probably been bullied by other, stronger men for so long that he's become a bully himself, with his intellect as his bully club. (Maybe Nietzsche was thinking of professors like Heyck when he came up with his "don't stare into the abyss too long" warning.) But sarcasm and belittlement are not constructive devises, and if one has nothing constructive to say, he should say nothing at all.

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I lied. I did eventually decide I felt like dealing with his arguments, so I wrote two pieces, one for each argument that irritated me. Here's the first one:

 

There's only one way to "make the Constitution relevant to modern society," professor!

 

It includes Professor Heyck's ideal replacement for Article V of the Constitution:

Article V:

The law professors of the United States, whenever a majority of celebrities, actors, lobbyists, and pundits shall deem it necessary, shall propose new nuances and understandings of the words in this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by word or implication by a minority of Justices of the Supreme Court. Should two minorities of Justices with conflicting interpretations emerge, the Chief Justice shall contact Dr. Thomas William Heyck, Professor Emeritus of History at Northwestern University, by whatever means he or she considers best; and Dr. Heyck shall settle the issue by fiat.

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The Tribune has a huge boxful of these professors to harangue its few remaining readers with sophisticated and artful demolitions of the silly arguments of the antiquarians who cling bitterly to the quaint notion that laws mean what the words in them say.

Professors, of course, having spent their lives among superior intellects thinking intellectually superior thoughts to hand down to the great unwashed mobs of proles, rubes, and knuckle-draggers taking up the muddy spaces between the shining cities-of-great-thoughts on the hills of academia. Professors able to somehow reduce the intellectual content of their dicta unto the bottom-dwellers in order to help them understand just how misguided they are.

Let us not forget the utterly brilliant Professor Cass Sunstein, currently of the University of Chicago, emitter of really brainy presidents, and soon to be US Supreme Court Justice Sunstein, who labored heroically for many years assisting the Tribune in maintaining this devastating avalanche of anti-gun advocacy.

Fortunately for us, many more of these wonderful thinkers will be able to keep up this stream of anti-rights and anti-individualism for as long as the Tribune draws ink.

 

Which could be several months, after all.

 

No, I'm not irritated.

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