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Second Amendment and the Living Constitution

Updated on May 31, 2018
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The second amendment


An introduction

With the many changes in society today compared to the much simpler times when the constitution was written, the question that continues to be debated on is on how to interpret the constitution. For Originalists, the constitution should be interpreted using the original public meaning (original meaning of the words) as was the case when it was affected. As such, it should be used as it was understood by the public when it became law. For Originalists, this is beneficial in that laws remain the same and impartial to all while preventing misuse of the law based on personal views (where it can be changed by the Judge from their personal interpretation). As for those in favor of the living constitution, the law, while conceived long ago, should be dynamic in order to take into consideration the changes of modern times given that changes continue to be experienced over time. Considering the changes that continue to be experienced and those with will occur in future as well as the problems of using Originalism interpretation, this paper will show that living constitution is the ideal way to interpret the constitution in society.

Originalist interpretation of Second Amendment

As briefly mentioned, Originalism is the perspective that the constitution should be interpreted using the original meaning of words as it did when it first became law. Waldmans writes ""Originalism" asserts that the only legitimate way to interpret a constitutional provision is to ask what the Constitution meant at the time it as enacted, in the late 1700s.". This is to say that the original meaning of given laws used to be used when interpreting laws and the constitution as a whole for any case or debate rather than trying to have it adjust to fit modern times. It is based on this perspective that Waldman asks "But what makes us think that the Framers wanted us to read their words, their misplaced commas, as if they were Scripture?". For Originalists like Justice Antonin Scalia, the role of the Court and judges alike is to use the constitution as it was conceived, using the original meaning of the words as they were used when it was conceived to make a decision. This is particularly favored by conservatives who hope to keep things the way they are and against liberals who identify that there are important changes in society today that need to be addressed.

The Second


Antonin Scalia’s interpretation of the second amendment

In order to understand how Scalia's interpretation compares to that of Originalists with regards to the Second Amendment, it is essential to understand what this Amendment says. According to Waldman, the Second Amendment in its entirety reads as follows; "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." (xi). Given that maintaining the original meaning of the words in the Constitution is of great significance for Originalists, it becomes important to consider ever word as used in this Amendment when it became law. As already mentioned, this Amendment was particularly important during the period in which it became law. Given that it was important for people to be able to protect themselves from a tyrannical government in order to protect their rights, the Amendment became law; allowing for a militia (National Guard) to be formed and possess guns for protection. For Originalists then, such words as militia in this Amendment should not be ignored because they are part of the Amendment. This is to say that during that period, guns were to be availed to a militia that would together play a role of protecting the people and that the right of such a militia to possess these weapons should not be infringed upon. If everyone is be to used as it was during the immediate Post-Revolutionary War period, the Waldman notes that such weapons would not be available to individuals as their rights to own guns, but rather to a militia, where such weapons would not be stored in the homes of individuals, but rather in a common place where all members of the militia would access them when need be. This, according to Waldman, is how the amendment was interpreted and followed given where guns would be kept in one safe area rather than homes of individuals.

Compared to Originalists, Justice Antonin Scalia's interpretation concluded that the Constitution allows for individuals to own guns for the purposes of protecting their own homes. This is to say that they have rights to individually own guns for self-defense. Therefore, for Scalia, the Amendment could not simply have been made law simply to protect against a tyrannical government, but also for self-protection. This extends the right to own guns from being limited to a militia to individuals in society in order to protect themselves. When we compare the two interpretations, it becomes evident that there is a difference between the two interpretations given that whereas the Amendment uses such words as "militia" for the security of a "Free State" Scalia makes changes to award rights to "individuals" to own guns for their own self protection and the protection of their homes. Despite being one of the biggest advocates of Originalism, this interpretation of the constitution may cause anyone to come to the conclusion that Scalia uses the Living Constitution interpretation where his interpretation seem to focus on today's society and current circumstances.

What does the law say?


Scalia's interpretation

Based on this interpretation by the Justice, it becomes evident that even for Originalists, using the original meaning of the words as they were used during that period in absurd given that there are changes in circumstances. Therefore, while Originalism may appear ideal theoretically, where all people adhere to laws as they were made for the benefit of the nation as whole, this does not translate well practically with all the changes that have occurred over the years. By making changes in order to align the Amendment with today’s society and the changes we have today compared to the period within which the Constitution became law, it becomes evident that Originalism cannot realistically make sense or work or be useful for anyone (Liberals or Conservatives) . The change of the interpretation by Scalia also shows that to some extent, he understands that Living Constitution makes more sense and is the ideal way of interpreting the Constitution, where the only other viable alternative would entail amending the Constitution as a whole.

The living constitution and the second amendment

Through the Living Constitution interpretation of the law, it would become clear that it is no longer practical to interpret laws using their original meaning as was the case during the period when such laws were affected. For instance, while it may have been important for people (militia) to possess guns in order to ensure that a tyrannical government would not try to take away their rights, this is no longer the case in given that such Amendments as the Fourth Amendment protect the rights of everyone. Given that the government has more power and is capable of protecting the nation as a whole, it can then be argued that the Second Amendment should no longer be interpreted using Originalism since a militia is no longer necessary to protect freedom and rights of the people. Based on Scalia’s interpretation, it also becomes evident that Originalists also understand the change in times and that Originalism is no longer practical. Today, Originalist interpretation of the Second Amendment has only resulted in negative consequences for many than it has positive consequences. It is for this reason that Frank explains that, "A living Constitution does not discard the spirit of the document, but seeks to apply its timeless principles to modern challenges that could not have been imagined b the Framers or their contemporaries.". This is to say that in the same way the Constitution was interpreted and used to deal with issues of that time, it should also be effectively interpreted and used in a way that effectively deals with today's issues as they are given that there have been many changes in society today compared to 200 years ago.

© 2018 Patrick


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