A maxim that was familiar to many Americans in the early twentieth century came from the newspaper columnist Peter Finley Dunne, in the voice of his creation, Mr. Dooley—an imaginary Irish-American barstool philosopher talking through the night at an imaginary Irish-American bar, in Chicago. (Though Dunne’s stuff is hard to read now, with the opacity of its Irish-American dialect, in his time he was, as E. B. White wrote in an introduction to an anthology of American humor, a first-rate satirist.) Dooley’s line (minus the brogue) stated that, while the Constitution might follow the flag, the Supreme Court follows the election returns.
It was a comment on a series of decisions, particularly Downes v. Bidwell, which the Court issued in 1901, following the Spanish-American War. With several caveats, those rulings essentially gave Congress the right to impose taxes on overseas territories. It was a result that seemed to many observers, Dooley among them, to hew oddly closely to the Republican Party platform in the Presidential election of the preceding year, in which its candidate, William McKinley, was reëlected in a landslide. Dooley’s saying was widely repeated, in 1937, after President Franklin Roosevelt’s Court-packing battle. Republicans in Congress resisted adding new members to the very conservative Court, but, in the light of F.D.R.’s own landslide reëlection, in 1936, the Court itself chose to become significantly more biddable on New Deal jurisprudence.
The line returns to mind today, though in slightly sinister reverse. The Supreme Court has decided to hear a Second Amendment case, New York State Rifle & Pistol Association v. Corlett, about the constitutional rights of an individual to carry a handgun outside the home, against the claims of a long-standing New York state law (dating to 1913), which holds that you must demonstrate “proper cause” and get a concealed-carry license to do so. The law, scarcely radical, insures that you need a license to tote a lethal weapon under your coat, just as you need a license to drive a car. (The first New York driver’s license dates to 1910.)
News that the highest court in the land intends to take on a Second Amendment case should be marginally encouraging. Given the epidemic of gun massacres in this country (according to the Gun Violence Archive, as of this writing, there have already been twelve mass shootings this month), the expectation would be that the Supreme Court would intervene to help remedy the situation, and bring the law more clearly in concord with the crisis—and more clearly in line with the will of the people, who overwhelmingly, in polls and through the preponderance of Democratic votes in our undemocratic system, want gun sanity. The fifty Democratic senators, it cannot be said too often, represent forty million more Americans than do the fifty Republican senators. Unfortunately, there is an ominous shared sense that the Court, as it’s now constituted, will further expand what are called Second Amendment rights. The likeliest result, if in a close decision, is a determination that even well-established state laws regulating gun ownership will be burned on the altar of the new individual right to bear arms. The fear is that the Supreme Court in the current era doesn’t follow the election returns, but is there to keep the election returns from being followed.
A certain weariness is likely to overcome anyone who has been down the Second Amendment path before. The rationality of the New York law is obvious, but persuading anyone who does not recognize it is hard, there being none so blind as those that will not see, to quote another famous Irish-minded man, Jonathan Swift. Meanwhile, the idea that the one-sentence-long Second Amendment guarantees an individual’s right to bear arms is far from being a deeply entrenched principle of American law. It’s a new idea, seeded by a burst of ambitious special pleading by the National Rifle Association in the nineteen-sixties and seventies. (Richard Nixon’s former Chief Justice, Warren Burger, later referred to that campaign as “one of the greatest pieces of fraud” ever perpetrated on the American people.) It was then midwifed into being by Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller.
Scalia overturned a century of jurisprudence with an argument based on originalism—choosing to interpret the words as they were allegedly intended at the time of their writing. Before Heller, the consensus was that the purpose of the amendment was to keep the new national government from overriding (or eliminating) local state militias. In 2008, the well-regulated militia was made to stand down, hidden behind a comma, because, as Scalia read the amendment, the Framers had trotted out a completely different set of folks, who do have an individual right to bear arms that, in this new and radical view, shall not be infringed.
As an analysis of an English sentence, this is as absurd as arguing that “To be or not to be, that is the question”—to cite another famous comma clause—has nothing to do with the nature of being (or not being) and is really a comment on the nature of questioning. In fact, Hamlet isn’t asking “What is a question?” He’s asking whether he should kill himself. The Founders weren’t separating the well-regulated militia at the beginning of the sentence from other people who appear at the end of it; they were saying that members of the Rhode Island militia, and their peers in other states, should have the right to carry muskets.
Justice John Paul Stevens, in a dissent that rightly became and remains famous, disassembled Scalia’s opinion. The only way to imagine that the “people” are anyone other than the members of those militias, he wrote, is by citing peripheral and secondary and much later linguistic references, in defiance of the plain meaning of the words at the time. “Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses,” Stevens wrote.
In very recent years, more evidence has emerged that, purely on historical grounds, Stevens’s view is the correct one. Two scholars at the University of Chicago have, with hair-raising enterprise and attention to detail, studied how the phrase was employed in its original use in the period. “Using the Google Books corpus, we searched a range of published materials dating from the period between 1760 and 1795 for the phrase ‘bear arms,’ ” they write. They then “classified by hand each of the 181 texts that our search produced according to the following categories: the use or sense in which the phrase ‘bear arms’ was employed (collective, individual, or undeterminable), and the type of subject that accompanied the phrase (plural, singular, or undeterminable).” They discovered that, in sixty-four per cent of those cases, the phrase “bear arms” was “used in a collective sense,” meaning it applied to groups, not individuals. The authors conclude, “In other words, consulting actual historical sources suggests that the context of the Second Amendment had more to do with militias and magazines than with solo householders molding bullets over their hearths.”
Such heroic academic efforts don’t diminish the deeper truth that there is something vaguely absurd about the stress that originalism places on historical research into language. Comically, originalists, Scalia prominent among them, often relied on Samuel Johnson’s Dictionary of the English Language, published in 1755, for reassurance about the eighteenth-century meanings of words. (Scalia cited it in Heller.) Johnson’s dictionary, in fact, is one of the most famously idiosyncratic and contested works of its time. It included deliberately tendentious definitions of words about things or people Johnson didn’t like, along with some that were just wrong, and others that were deliberately opaque. (“Ignorance, Madam, pure ignorance,” was his famous reply to a woman who had asked him for the source of an incorrect definition.)
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