Fundamentalism about texts, legal or biblical, marks people of the book. The word, taken at its word, affords a rallying-point of last resort for societies whose bonds are otherwise watery. The Supreme Court judge Antonin Scalia, for instance, is an ‘originalist’ about law – he thinks that with texts like the Second Amendment, their meaning now is what a reasonable person would have taken it to be when it was enacted. Originalism can look quite like ancestor worship, though according to Scalia it is the only way judges can avoid interpreting law via their own prejudices.
That claim sounds odder after reading the Supreme Court judgment in DC v. Heller, which ruled unconstitutional a DC law regulating the private ownership of firearms. There Scalia devotes twenty tortuous pages to expositing the phrase ‘keep and bear arms’ as it figures in the Second Amendment, with riffle-throughs of Johnson’s Dictionary, which fail, despite his best efforts, to mask the fact that its meaning turns out to be what a ‘reasonable’ 18th-century pre-incarnation of Antonin Scalia would take it to be.
You might think the mention of militia in the prefatory clause made a difference. The First Amendment’s ‘Congress shall make no law… abridging the freedom of speech’ would be a rather different beast were it preceded by a clause such as ‘Speech being necessary to the security of a free state’, precisely because that would leave the door wide open to quashing seditious speech, among others. The amendment mentions militias to allow a reading that weakened the hand of the federal government against the founding states, a much-chewed bone in the Federalist and during the constitutional convention in 1787. There, as in Scotland after the Jacobite rebellion in 1745, militias were seen as a check on enslavement not just by foreign arms, but also central government – the reason republicans favoured them over a standing army. It’s a bit of niftily crafted ambiguity, where the ‘people’ in the first clause can refer either to the 101st airborne or musket-toting pigmen in the boondocks as voiced by the National Rifle Association’s ‘Wacko’ Wayne LaPierre.
But then ‘the people’ has always been a bit of a floater. Scalia claims to be a (small-‘d’) democrat. But, since law doesn’t read itself, judges such as Scalia have to construe or ventriloquise what the people may have meant by passing it – which, in this case, means a congeries of late 18th-century white male plantation and slave-owners. Even this fails to work in its own terms. In McDonald v. Chicago (2010) the Scalia court held that the Second Amendment applied to states as well as the federal government via the so-called ‘incorporation’ provision of the 14th Amendment’s due process clause. That is taken to mean that the Bill of Rights provisions are retrojected into state law, so that state legislatures may not enact firearms law more stringent than what’s allowed by the Second Amendment. But the 14th Amendment was enacted only after the Civil War, in 1868. So, accoutred with the incorporation provision, originalism’s reasonable man is not merely an 18th-century farmer with an idiosyncratic understanding of ‘militia’: he also, in ratifying his contemporaries’ legislative acts, relies on a postbellum constitutional tweak enacted by their great-grandchildren.
Original, indeed. As Paul says in Corinthians, the letter kills, and in this case we can safely take him literally.