Language In Stone – Amendment 2
It seems like there is a never-ending supply of people who claim the Constitution is a living document. It’s not so much that the claim is, strictly speaking, incorrect, as it is incorrect in some people’s application of the idea.
Take the second amendment for example.
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.
Some people allege the wording of the amendment applies only to the militia, and I am inclined to agree. What seems to be a major difference is the working definition of “militia”. The militia today, by law, includes male citizens and legal aliens between certain ages and all male and female members of the National Guard. If you use this definition it’s clear that most people would pitch a fit, I would caution against trying to confiscate the arms of men too old and women not in the National Guard. I think it would be reasonable to suggest not many people would volunteer to do the round-up, mostly out of self-preservation.
It is, however, idiotic to define the militia by today’s definition. If the concept of a living document includes consideration of how a definition changes over time, it would not be unreasonable to have Congress establish a state religion by simply legislating the definition of religion. One could easily imagine that Congress could redefine the word “speech” or “press”. Since that is plainly ridiculous, it should follow that simply changing the definition of the militia cannot change the interpretation of the Constitution.
A living document more correctly entails looking at definitions from the period of enactment and reasonably deciding whether or not technological and social developments since then would likely be counted at that time. I think it takes very little imagination to determine which of todays weapons would have been covered in 1789.
Rifled rifles? Doubtless, there were already rifled guns at the time.
Hand guns? Doubtless, they also existed at the time.
High explosives? I don’t think so. Some explosives are a given, black powder, gun cotton, etc. both were in existence at the time and some other things are reasonable extensions.
Nuclear arms? Don’t be silly. As recently as 1 second before the first atomic explosion, even some of the scientists who designed and built the first bomb, trinity, were skeptical about it being possible. When someone makes this argument I stop engaging them, you are obviously dealing with someone off their meds, or someone who should be medicated, if not kept in a padded room.
High capacity magazines? Given that people were already experimenting and having some success with firearms which could fire rapidly, and since this was widely known and expected, that assertion is almost as bad as the last example. More importantly it’s a dumb thing to ban anyway, from the small 9mm pistol I carry concealed each day, which hold 7 rounds in the magazine, I can direct as many as 50 rounds down range with reasonable accuracy in around a minute, simply by exchanging magazines. Like I said, it’s also pretty small and thus light, so even 9mm not having a lot of kick, the lightness makes the kickback worse, harming accuracy and firing speed.
You can see how logical this approach is and it is well used, when talking about the internet, it’s easy to say the framers would have likely seen the internet as a conduit of speech. Whatever the reason might be, many anti-gun nuts don’t apply this logic to the 2nd amendment, but still do so with all the others.
For the sake of argument, consider that it makes sense that Congress is able to redefine the terms used in the Constitution. Now take a look at the 8th Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
What would this mean if Congress were to change the definition of “punishment”, or “cruel”, or even “excessive”? It’s clear this isn’t allowed, since Congress does have this power of definition given in other areas of the Constitution:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To me this is a clear case of: “Exceptio probat regulam in casibus non exceptis”, or in english: “exception confirms the rule in the cases not excepted”. So, when you see a “no parking between the hours of X and Z”, the existence of this exception proves the rule that you may park there outside of those hours. Likewise, if the power to define what piracy is has to be given, you can assume Congress does not have this power “in the cases not excepted”. Right?
So, when you talk about the Constitution being examined today in a court case, you cannot use todays usage of a word, you have to begin at the original definition or meaning, and interpret whether a recent development is likely to have included had it developed prior to ratification. For me this is a great example of why DOMA, the federal statute that defines marriage, is unconstitutional. Congress doesn’t have the power to decide who one’s spouse is at all. The states may, or the people may, but not Uncle Sam. I would be curious how this idea might be applied given a catholic married couple who have been divorced by the state, but not in the church. Your spouse can’t be compelled to testify against you, so where must the courts go to decide if you are married? State law or, I suppose, the simple statements of the two parties concerned, or maybe even their church (or whatever.)
Disclaimer: There is a great deal of plagiarism going on in this post at the moment. At least sort of. I usually go back and add hyperlinks to any source materials, typically I get a lot of citations from Wikipedia because it is easy to find accurate info on court cases and other odds and ends. But alas, it’s protest time. I’ll try to get back to do this later.