Searching for Justice Frodo

Court law booksIt never ceases to amaze me how many people find it reasonable to think that we need to go to court to get an answer to a question like:  Can a state enact a law banning the ownership of semi-automatic rifles?

Textualism says that when applying a statute or constitutional provision, we should look only at the text — the words that it contains — setting aside considerations about tradition, history, legislative intent, and a lot of other things that we can’t really describe with accuracy or certainty or consensus.

(If this seems extreme, consider the position taken by any alternative to textualism: that a citizen, even one trained in the law, should be unable to determine the meaning of a law just by reading it.)

If we look at the text of the Constitution, we find this:

Amendment 2: The right of the people to keep and bear arms shall not be infringed.

Amendment 14: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The latter says that if the federal government can’t abridge a freedom, a state can’t do it either.  So we just need to ask whether the federal government can ban ownership of semi-automatic firearms.

To answer this question — Can a state enact a law banning the ownership of semi-automatic rifles? — and others like it, we just have to answer a few simple questions:

  • Are those affected by the law part of ‘the people’?
  • Is the activity being banned or regulated an example of ‘keeping’ or ‘bearing’?
  • Is the item being banned or regulated an example of an ‘arm’?
  • Is the ban or regulation an example of an ‘infringement’?

If the answer to all of these is ‘yes’, then that law violates the text of the 2nd Amendment.  In this case,

  • Yes, the residents of a state are part of ‘the people’.
  • Yes, ownership is an example of ‘keeping’.
  • Yes, a semi-automatic rifle is an example of an ‘arm’.
  • Yes, a ban is an example of an ‘infringement’.

So the textualist answer to the question is:  No, a state cannot ban the ownership of semi-automatic rifles.

To get this answer, we don’t need to hire lawyers, print up briefs, make oral arguments before a panel of judges, and then wade through dozens of pages of rulings and concurrences and dissents.  Any competent adult — even a legislator — should be able to make this determination in a minute or two using nothing more than a pen and a napkin.

It’s only when we want to pretend that the answer might be ‘yes’ that we need to start fishing around outside the text for support.  And that takes us away from textualism, and towards… something else.

But why would we want to do that?  Well, if we take a closer look at those four questions, we find that they lead to some conclusions that many people find uncomfortable.

Some examples of members of ‘the people’ would be:

  • Men
  • Women
  • Children
  • Convicted felons

Some examples of ‘keeping’ would be:

  • Owning
  • Renting
  • Borrowing

Some examples of ‘bearing’ would be:

  • Open carry
  • Concealed carry
  • Vehicular carry
  • Valet carry

Some examples of ‘arms’ would be:

  • Firearms (including handguns, rifles, and shotguns)
  • Semi-automatic firearms (one shot per trigger pull)
  • Automatic firearms (multiple shots per trigger pull)
  • Suppressed firearms
  • So-called ‘high-capacity’ firearms
  • Knives
  • Automatic knives (‘switchblades’)
  • Swords (including sword canes)
  • Monkey’s fists
  • Blackjacks
  • Brass knuckles
  • Collapsible batons

Some examples of ‘infringements’ would be:

  • Bans
  • Taxes
  • Licenses and permits
  • Registration requirements
  • Storage requirements

Textualists can determine the constitutionality of most statutes just by consulting lists like these.  And they will come up with answers like:

Q: Can there be a law forbidding a convicted felon from owning a handgun?
A: No.

Q: Can there be a law forbidding an adult from lending a firearm to a child?
A: No.

Q: Can there be a law requiring suppressors to be taxed?
A: No.

Q: Can there be a law requiring owners of firearms to register them?
A: No.

Q: Can there be a law forbidding a person from carrying a firearm in court?
A: No.

And so on.

So doing the reasoning is easy.  It’s accepting the reasoning that proves more difficult.  So difficult, in fact, that there are virtually no actual textualist judges sitting on any benches, anywhere.

To be a textualist, you have to be willing to accept that sometimes the law as written leads to conclusions that you find abhorrent.  But given how much latitude judges have granted themselves to rationalize decisions that harmonize with their prejudices, being a textualist requires more restraint than we can probably expect from normal human beings.

The ability to expand beyond the text of a law, in order to shape it to your desires, is more power than even Frodo could resist.  Like the power of the One Ring, the only way to deal with it is to get rid of it.  Which is the essence, and the purpose, of textualism — the only fire hot enough to destroy the awesome and arbitrary power of judicial review.

But who among us would have both the credentials and the integrity to toss it in?  Or even to begin that journey?