The argument from history doesn’t jive with history

It seems when arguing about our legal system, two things will hold true: a person arguing against capital punishment will bring up the cost associated with it, and a person arguing against the private ownership of firearms will bring up the historical interpretation of the Second Amendment. The former I’ve already tackled, twice, and the second is today’s topic.

The most recent example I’ve seen is Saul Cornell’s article on the Daily Beast called "Gun-rights advocates should fear history of Second Amendment".

Which also brings up a third notion that always holds true whenever someone argues about the Constitution: they blatantly ignore the Ninth and Fourteenth Amendments when they prove inconvenient. Quoting Cornell’s article:

Up until the 1980s, there was no “individual-rights” theory of the Second Amendment. Many states had adopted provisions protecting an individual right to own guns, but this tradition was distinct from the Amendment.

Now the history argument regarding the Second Amendment is quite easy to break down. To say that a modern interpretation of an Amendment is incorrect because it is substantially different from previous interpretations, and that we should prefer the historical interpretation merely because it’s the historical interpretation, regardless of the justifications behind the historical interpretation, is an easy notion to demonstrate as fallacious with just one Supreme Court decision.

In the infamous Plessy v. Ferguson, 163 US 537 (1896), the Supreme Court upheld state-prescribed segregation under the fallacious doctrine of "separate but equal". For the history argument to stand, the interpretation of the Fourteenth Amendment as permitting segregation must be allowed, yet no one today would support such an idea unless they happen to enjoy being labeled a racist. Under Earl Warren, in the also infamous Brown v. Board of Education of Topeka, KS, 347 US 483 (1954), the "separate but equal" doctrine was struck down, unanimously.

What really opened the floodgates for the expansions of liberty was the "incorporation doctrine". And the Earl Warren and Warren Burger courts saw massive expansions in individual freedoms and protection of individuals from the government.

Miranda v. Arizona, 384 US 436 (1966), also under Earl Warren, saw the introduction of the requirement, citing the Fifth Amendment and the incorporation doctrine, that an individual be informed of their Fifth Amendment protection from self-incrimination before being interrogated by law enforcement. Gideon v. Wainwright, 372 US 335 (1963), again under Earl Warren, introduced the requirement, citing the Sixth Amendment, that the government must provide an attorney to someone who cannot afford one, something of which virtually every jurisdiction will also inform persons to be interrogated.

There are numerous instances of the Bill of Rights being applied in ways they previously were not, and, again, the most striking example of it, in my opinion, being the Plessy and Brown decisions. One could argue that those who drafted the Fourteenth Amendment’s Equal Protection Clause would never have dreamed of it actually allowing segregation, yet that is how the Court interpreted it.

Christian conservatives love to use the history argument as well, and also with regard to the Equal Protection Clause. They will say things along the lines that those who drafted the Clause would never have dreamed of it allowing abortion, gay or interracial marriage, homosexual sexual activity, or even birth control. Basically they will assert that today’s interpretations of the Bill of Rights are not correct and that past interpretations or some unspoken intention regarding how the Amendments should be interpreted must actually be correct.

And the history of birth control is also a very striking example of how the Constitution has been interpreted by the Courts as protecting individual liberty. The landmark Supreme Court case on that mark is Griswold v. Connecticut, 381 US 479 (1965), again under Earl Warren. In a 7-2 decision the Court struck down a Connecticut law that criminalized birth control. It was one of the first cases, if not the first, that introduced the right to privacy. In that case it was marital privacy, but it was one hell of a jump in individual liberty jurisprudence. Never before had the idea of a right of privacy been considered at the highest Court in the land.

All of those cases rest on a concept called "substantive due process", an interpretation of the Fifth and Fourteenth Amendments in which Courts will declare a right to be fundamental if it is specifically enumerated in the Constitution or seen to be related or stemming from an enumerated right. From substantive due process we get the test of strict scrutiny, which, if applied, requires the government to justify the law according to a three-pronged test.

Most laws challenged under substantive due process and strict scrutiny fail the test.

Yet these ideas didn’t exist in case law until the 1930s. And they are the foundation for the massive expansions in individual liberties and protections against the government that are still happening even today.

And yet, with regard to the Second Amendment, completely ignoring the Ninth and Fourteenth Amendments and the jurisprudence that has stemmed from them, liberals are wanting to "reverse the clock" on the Second Amendment. True that the Supreme Court was largely silent on the Second Amendment until District of Columbia v. Heller, 554 US 570 (2008), and McDonald v. Chicago, 561 US 742 (2010). The former declared there to be a fundamental right to own a firearm unconnected to any service in the military or a militia. The latter applied the Supreme Court’s reasoning to the city of Chicago, Illinois, through the incorporation doctrine.

But the Court only in recent years recognizing the individual right to own firearms does not mean such a right never existed. Indeed if one were to interpret the Ninth Amendment as it written, such a right has always existed and has only recently been recognized and protected by the Court against infringement by the government. I said this in a YouTube comment back in April regarding Justice Stevens’ desires for amendment the Constitution with regard to the Second Amendment:

Repealing or modifying the Second Amendment would not eliminate the right to keep and bear arms as the Ninth Amendment clearly says that the rights enumerated in the Constitution are not to be construed to be the only rights a person has. Modifying the Second Amendment in the way Justice Stevens desires would just mean that he’s declaring that a person has a right to keep and bear arms while serving in a militia. But the Ninth Amendment means that just because the Constitution would then be silent on the right of a private citizen to keep firearms does not mean the private citizen does not have a right to keep firearms. And the Fourteenth Amendment would then mean that I cannot be denied the right to have firearms without there have been some kind of preceding legal process — a felony conviction being the most common example.

As such, taking away the Second Amendment, completely nullifying it, does not mean no one can own firearms because the Ninth Amendment and Fourteenth Amendment would still control. As such the only way a ban on firearms can go through is if we have an Eighteenth Amendment equivalent with regard to firearms — and imagine how well that would go over.

This is the one thing that few seem to take into consideration: the Ninth Amendment still controls in all debates with regard to rights. And the Ninth Amendment says that just because a right has not been enumerated does not mean it does not exist. The fact that the right is only recently being recognized does not mean it did not exist until that point. To say otherwise is to say that a particular species of crab didn’t exist until it was discovered. No the species of crab had to exist in order to be discovered, just as rights have to exist to be protected by the Court.

And so it is the same with the individual right to bear arms. And under strict scrutiny and substantive due process, you have to have one hell of a reason to restrict that right in order for it to fly under the Constitution.