The Living Document Strikes Again

More broadly, as the title of my article states, the key question is not what the Second Amendment may have been understood to mean in 1791, but what it means today? And on that question, the Supreme Court has said pretty clearly that its "right" language needs to be read in light of its preamble, a point made at length in dissent by Judge Henderson. As I acknowledge above, the Supreme Court opinions on point are under-argued, but the standard rule is that lower courts must follow Supreme Court precedent unless the Supreme Court itself overrules that precedent. Having violated the spirit if not the letter of that rule, the DC Circuit has now teed the issue up for the Justices to take a fresh look at the question.

This is the heart of the "living document" school of thought about the Constitution. The idea that the meaning of a document can change over time is just fine for a literary professor finding new meanings in Shakespearian work as a creative exercise, but it is something altogether different when applied to a document that forms the legal foundation of a nation encompassing 300 million people.

You simply cannot "reinterpert" such a document without changing the terms of the agreement that governs all of those lives. To be legitimate, that process must be democratic in nature and itself in accordance with the law.

So what does the 2nd Amendment mean today? The same thing it meant when it was written: that the government may not restrict the possession or carry of arms by its people. Arms have changed; the meaning has not.

That today's government refuses to recognize that meaning is a problem with the government, not the document.

Posted on 2007-03-12 19:42:28.0 by matthew@triggerfinger.org

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