At SCOTUSblog, Haley Proctor (Notre Dame): What James Madison thought about AR-15s. From the introduction:
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.
Posted at 6:03 AM