In response to an email that suggested the solution to guns is more liberal seats on the Supreme Court, I wrote this:
‘I would expect such a ruling to be very careful. The idea would, I think, need to be that the conception of mass shootings was so completely unknown to the Founders that this form of menace could not be comprehended in an originalist perspective on the 2nd amendment. I’ve never seen this idea advanced in print. I’m unaware of any ruling like that. It is not the same as saying times have changed, because the originalist perspective is that’s why you have a Constitution, because times change and you need to follow the blueprint through changing times. I think it would need to hang on the founding principles of life and liberty, and such basics as ‘preservation of the common good’ and ‘domestic tranquility’ in the Preamble, so the unforeseen events of mass shootings would be deemed to be something the Founders would have accounted for in the 2nd Amendment if they’d been able to foresee them. The argument is fairly strong that the Founders did not believe rights would – not should but would – cause massive loss of life and liberty. I think you can assume that’s true. This would be arguing the Founders would have done something else if they’d been able to foresee the extent of harm done by a largely unfettered right they clearly intended to create. It’s a delicate form of originalist interpretation in which you infer what the Founders would have done because something so dramatically unforeseen happened that the bounds of ‘intent’ need to be redefined in light of the unforeseen having occurred. To be cute about it, this would need to be treated like a ‘tail event’ or black swan event: not as an open invitation to reinterpret the Constitution but as the single example of something so out of line with what the Founders would have intended that we are required to attribute intent to them that covers what has occurred.
Jonathan’
People like to construct reasons why the Supreme Court held the way they did. Unimportant: they ruled the 2nd Amendment is an individual right. The ruling was a surprise but it exists. The NRA didn’t create it. Supreme Court justices interpret the Constitution, and they are independent thinkers. People like to argue that the 2nd Amendment was related to slavery – which is partly true because the ‘militia’ was argued for partly by southerners fearing slave rebellion – but it doesn’t matter why the 2nd Amendment was written, but that it exists and this is how it has been interpreted. BTW, the Court was tremendously reluctant to take gun cases, which is why the ruling took over 200 years! Again, unimportant except as history.
My argument is that the Constitution is a contract, a specific form known generally as a compact, as an agreement among parties. Contract law handles foreseeability: if unforeseeable events happen, then they are fit to what the intent would appear to be in the existing contract, meaning the existing contract is taken as an embodiment of principles. This is how, for example, a trust is reformed. An example is John Paul Getty’s mother’s trust was set up to prevent him from speculating but then over time an unforeseeable event arrived in the form of an offer to purchase that would give the trust shares or other interests along with cash. The trust was only allowed to own bonds of specific governments – some defunct – so the question was whether the goal of the trust to provide would be allowed to take precedence over the literal words and past conduct. The idea was that the beneficiaries would be worse off just because a long dead person didn’t contemplate such a scenario. I see mass casualty gun violence as an unforeseen event which conflict with the premises of the Constitutional contract.
I note that Connecticut’s gun law about assault rifles – here – is fairly comprehensive; it not only lists specific models but restricts the number of features to 1, meaning the cafeteria list of features like folding stock and pistol grip is any 1, so any rifle with any of these features is regulated. I can’t see this law as being Constitutional under Heller unless the Court reinterprets the 2nd Amendment. That’s my point: there needs to be a Constitutional reason why the precedent is refined, one that addresses the originalist concerns and the literal wording.
Updated: I also think the best rationale may be to say that states have the ability to decide gun laws for their own citizens because the unforeseen issue may be seen differently in each state. That would enable Connecticut to maintain gun laws that, as Heller now stands, are not constitutional.
jomi: playing with perception 