By Michael Brady
The Supreme Court’s recent decisions on guns and abortion show how predetermined outcomes can be reached by judiciously selecting which strands of history to weave together into a story compelling the desired result. Both decisions were purportedly based on the same neutral, objective readings of history and original intent of constitutional text. But the “arms” of the Second Amendment has evolved into what that word means to us today while the “liberty” of the 14th Amendment has become fossilized into pertaining only to those rights that were recognized when that amendment was adopted in 1868, not the rights we actually enjoy today.
Modern gun regulations are now invalid unless they existed, or had an equivalent, in the era when the Second Amendment was adopted. Gun controls in the late 1700s and early 1800s supposedly are the only arms regulations that were constitutionally intended to limit the right to keep and bear arms today. When the Second Amendment was adopted in 1791, however, firearms used flintlock technology. Flintlocks could not be fired more than two or three times a minute and aiming small arms accurately was impossible.
All of that changed in 1854, when Smith & Wesson invented the first self-contained bullet with primer, powder and projectile in a full-metal cartridge. Small arms that could accurately fire multiple rounds in under one second were soon mass-produced with a lethality that was unforeseen and unimaginable in 1791. Modern firearm regulations, like New York’s concealed permit laws going back almost 120 years, were adopted to address the historically unique problem that arose in the late 19th century of modern firearms using modern bullets.
Based on a fiction
You would never know this from reading the Supreme Court’s decision striking down New York’s law because “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment,” at least when spinning that version of history.
Instead, based on the fiction that the same continuous and uninterrupted problem of guns in populated places “has persisted since the 18th century,” the opinion unsubtly jumped to its conclusion that just as the First Amendment protects modern forms of communications and the Fourth Amendment relates to modern searches, so the Second Amendment applies “to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
To overturn Roe v. Wade, however, the Supreme Court could not construe the “liberty” of the 14th Amendment the same way as it did the “arms” of the Second Amendment, where constitutional text expands to take on its modern-day meaning. “The Court must not fall prey to such an unprincipled approach,” the majority harangued, “Instead … we must ask what the Fourteenth Amendment means by the term ‘liberty,’” which is why our rights today are now constitutionally protected only if they were originally intended for protection in 1868.
But the founders didn’t intend their constitutional deliberations to be used for interpretative purposes. They kept no official record of the proceedings and voted to keep the constitutional debates confidential at the time and secret afterwards.
So how is original intent even reputable as a doctrine of constitutional interpretation? Looking to the original intent of the constitutional text and the Bill of Rights privileges the originally racist intentions of the founding slaveholders and their facilitators in the newly formed United States. And legally enforced racial segregation was the norm when the 14th Amendment was adopted: the Congress that passed the 14th amendment also voted to segregate Washington, D.C.’s schools.
If the understanding of that era really determines our rights today, then Brown v. Board of Education, which held separate-but-equal racial segregation unconstitutional in 1954, was wrongly decided because it is at odds with the original, intent of equal protection in 1868 — more than a half-century before women could vote.
Using original intent as a judicial masquerade for reaching a predetermined result originated in the Supreme Court’s disastrous and utterly repudiated 1857 Dred Scott decision, which helped precipitate the Civil War and the 14th Amendment by holding that free Blacks were not “citizens” of the United States because of the intent of the founders.
The conservative majority on the Supreme Court still uses Dred Scott for more than interpreting the Constitution: Clarence Thomas’s majority opinion in the gun case unapologetically quotes from Dred Scott as historical evidence of the general, pre-Civil War understanding that free Blacks could not be citizens because otherwise “they would be entitled to … keep and carry arms wherever they went.”
Upon such discriminating uses of history, our rights and our liberty now depend.
Michael Brady, a member of the bar of the U.S. Supreme Court, is an inactive attorney. He lives in Winthrop.