What James Madison thought about AR-15s

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

My most recent column considered the challenges involved in determining the legal rules created by the people who ratified and amended the Constitution, given that the answers lie so far in the past. This column will consider the challenges of applying those rules to resolve present-day disputes.  

The process of applying old law to new facts raises several questions: Do legal rules have anything to say about facts that did not exist when the rules were created? If these rules do have something to say, how do we figure out what it is? And why should we pay any attention to what those rules say? 

Let’s take the Second Amendment as our example. Since its ratification, firearm technology has developed in ways that have led to gains in accuracy, range, rate of fire, and lethality. This makes firearms better – safer – for the good things: common defense, self-defense, hunting, and sport. But it has also made it easier for wrongdoers to use them for ill.

Does the word “arms,” which the people of 1791 understood to refer to muskets and firelocks, refer as well to modern arms like semi-automatic rifles and handguns? The ratifiers struck a balance between promoting the positives of firearms and prohibiting the negatives when they ratified the Second Amendment. How do we abide by their balance if the weights have changed? 

To answer these questions, it is helpful to understand the difference between two actions courts perform when they adjudicate constitutional claims: interpretation and application. 

Imagine constitutional adjudication as a roundtrip journey. The journey begins with a trip back in time to recover the original meaning of the constitutional provision that is at issue. That is interpretation. At some point, the judge turns around and brings what he has learned back to the dispute that is before him. That is application. Visualizing the dispute in this way helps us to appreciate the difference between the two activities: the judge’s orientation in time is different. When he interprets, he is looking to the past for an answer. When he applies, he is returning to the present and using what he has learned. 

What he brings to the dispute from history is a legal rule. He does not ask how the founding generation would have applied that rule to the case before him. Rather, figuring out how the rule applies is a job that awaits him on his return.

A famous exchange between Justice Antonin Scalia, Justice Samuel Alito, and Zackery Morazzini, the deputy attorney general of California, in the oral argument for Brown v. Entertainment Merchants Association, illustrates the difference.  The question presented in that case was whether California’s ban on the sale or rental of violent video games to minors violated the First Amendment. Here it is:

“JUSTICE SCALIA: … [Y]ou’re asking us to create [a] whole new prohibition which the American people never … ratified when they ratified the First Amendment. They knew … obscenity was … bad, but what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does – will that affect them? Of course, I suppose it will. But … are we to sit day by day to decide what else will be made an exception from the First Amendment? Why – why is this particular exception okay, but the other ones that I just suggested are not okay?

MR. MORAZZINI: Well, Justice Scalia, I would like to highlight the fact that the material at issue [in a relevant precedent] was not obscene…

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

(Laughter.)

JUSTICE ALITO: Did he enjoy them?

JUSTICE SCALIA: No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there – there was an exception to it for – for speech regarding violence? Anybody?”

A judge who is doing originalism is not inviting the ghost of James Madison to take his seat and apply the First Amendment to video games for him. As I have recently written for a symposium in the SMU Law Review, that would be an abdication of the judicial duty. Neither, however, does he feel free to craft his own legal rule that will advance the policies of the First Amendment in a modern context. Rather, the judge observes what Madison (and many others) said and thought and did and draws inferences about the meaning of the Constitution they ratified. 

In short, history supplies meaning, not case judgments. With this understanding, we can return to the questions at hand.

Do legal rules have anything to say about facts that did not exist when the rules were created? 

Of course they do. Unlike a judge, who generally looks backward in time, resolving disputes in the past, legislators generally look forward, creating rules for the future. The law they create consists of more than a closed set of applications to facts that already exist; it necessarily supplies rules for facts that will arise in the future. Indeed, if a law only attached legal consequences to extant facts – facts that must have come into being in the past – we would think it pretty unjust, not to mention ineffective at guiding our future conduct.

The same is true when “We the People” make constitutional law. That is why an amendment penned by a man who communicated with George Washington by quill and horse-powered post can protect your viral cat video; why it is intelligible to ask whether a cheek swab to analyze DNA is a “search” within the meaning of an amendment ratified nearly a century before Friedrich Miescher isolated nucleic acid; and – to make the point just a bit silly – why you do not have to go searching for a 234-year-old attorney to vindicate your right to counsel. Because the people of 1791 formulated their rules at a sufficiently high level of generality to accommodate change in their rapidly changing world, those rules have something to say about the much-changed world today.

The Second Amendment is no different. The arms we bear today may differ from the arms of the past, but they are still “arms.” If law did not work this way, then gun control laws would be feckless, too.

If these rules do have something to say, how do we figure out what it is? 

Because the law creates rules that will apply to future facts, courts must sometimes apply them to facts that were not within the contemplation of the law’s drafters. When they must do so, one tool courts use is “analogical reasoning” – that is, reasoning by analogy. Analogical reasoning is the process of asking whether the circumstances today are similar to circumstances of the past in a way that matters to the legal rule the court is applying. And it is “a standard feature of legal reasoning,” not unique to originalism.

As I noted in my previous column, “arms” in 1791 meant pretty much the same thing it means today, so applying that term to modern firearms is not that difficult. But analogical reasoning has proven important on the other side of the Second Amendment equation: the historical tradition of firearm regulation. Because just as the Second Amendment’s protections are not limited “to muskets and sabers,” its allowance for regulation is not limited to “those regulations identical to the ones that could be found in 1791.”

As Justice Amy Coney Barrett explained in her concurring opinion in United States v. Rahimi, one of the biggest challenges that arises in applying rules drawn from our historical tradition of firearm regulation is figuring out the proper “level of generality”: “Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do founding-era gun regulations yield concrete principles that mark the borders of the right?”

Because courts look to history for meaning rather than case judgments, today’s judges are looking for “concrete principles that mark the borders of the right.” Put differently, we look to the historical regulations as evidence of the legal limits within which ratification-era regulators understood themselves to be operating. The historical regulations they actually enacted merely embody original expected applications of those principles. 

Thus, a judge will ask whether a challenged regulation and its historical analogue “impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” This approach respects the original contours of the right while providing political actors with the discretion the ratifiers of the Second Amendment intended to leave them to develop regulatory solutions tailored to modern needs.

Why should we pay attention? 

Recognizing that the Second Amendment binds neither rights-holders nor regulators to the 18th-century applications of its terms ought to alleviate many of the concerns about applying old rules to new facts. 

But more importantly, a rule is a rule, even if it is old. A judge’s job is to apply the rules, not to make or remake them.

Brown v. Entertainment Merchants Association is one in a line of First Amendment cases holding that the boundaries of “the freedom of speech” were set at the Founding, and that the government bears the burden of proving that a speech regulation it wishes to impose is consistent with the principles marking out those boundaries. The court also drew on these precedents to construct its Second Amendment doctrine. 

Even while acknowledging that speech (like firearm technology) changes over time and presents new and unanticipated challenges, the court defended that approach in Brown:

“The Government argued in [United States v. Stevens] … that it could create new categories of unprotected speech by applying a ‘simple balancing test’ that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. We emphatically rejected that ‘startling and dangerous’ proposition. ‘Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.’ But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the ‘judgment [of] the American people,’ embodied in the First Amendment, ‘that the benefits of its restrictions on the Government outweigh the costs.’”

If the people believe the benefits and costs of keeping and bearing arms justify a different balance today, then they remain free to revise the rule by amending the Constitution.