SCOTUS Needs an Originalist

Abridge, Infringe and the Second Amendment

When Antonin Scalia came to St. Louis University in 1993, he told students and faculty that the most important thing about constitutional interpretation was to have a fixed lens through which to make that interpretation, and to stick with it. Essentially he argued that you couldn’t be an originalist one day, and a “living document” guy the next.

In response one of the Jesuit faculty asked him to explain then how that position squared with the Court’s laudable decision in Brown v. Board of Education.   Scalia’s answer was unsatisfactory to most, but essentially he argued that as an originalist, his thinking on the Bill of Rights was fixed at the time of the founding, but that his understanding of the later amendments, including the Fourteenth Amendment, did not arise at the same time. In essence it was an admission that no analytical framework perfectly fits the Constitution. But Scalia believed, as many do, that originalism fits the Constitution the best.

Nowhere in the Constitution or anywhere else is there any distinct requirement that its interpretation be guided by any particular principle. It is worth noting that many state constitutions and state statutes[1] have interpretive principles written into them, ostensibly because of the loose nature of the Constitution.

In large part because interpretations of the constitutional principles arise in the form of either civil or criminal challenges, the interpretation of the various bill of rights provisions have rendered a discordant reading of the fundamental principles announced in the Constitution. Although the Second Amendment appears after the First, there is no interpretative guideline in the organic document that suggests that the numbering of the amendments were to be viewed as some form of prioritization of these rights. Still, because First and Second Amendment freedoms have been interpreted very differently, it’s important to look first at the actual language of the amendments, and the meaning of the key words defining the rights.


The First Amendment states:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment challenges usually deal primarily with religion and the free exercise clause, since no state or entity has ever suggested the establishment of any particular religion in this Country. With respect to the protection of speech, however, the Supreme Court has gone to extreme lengths to avoid infringing even the to the tiniest degree, the right of the people to express disagreement with the government, and to permit full artistic freedom even when it offends the majority.

Thus, it’s helpful to look at the actual words used in the amendment to get a sense of what the founding fathers were actually trying to accomplish. Distilled to its essence the founding fathers said this about freedom of speech:

“Congress shall make no law … abridging the freedom of speech….”

Abridge means “to diminish or shorten in scope; to diminish by reducing.” It derives from Middle English abreggen, abriggen “to reduce, diminish, shorten,” and is borrowed from Anglo-French abreger . “Abridge.” Webster’s Third New International Dictionary, Unabridged. 2016.. Web. 01 Dec. 2016. In other words, Congress (and the states by virtue of the Fourteenth Amendment) can make no laws that diminish the freedom of speech. It is noteworthy that while the word “expression” was in common use during the 18th century, it was not chosen for use in the amendment. Rather, “speech” was chosen. By inclusion of the phrase “or of the press” the prohibition on speech is extended to public writings.

From these nine words, freedom of expression, and an extension of the right to engage in “symbolic speech” like flag burning have become the law of the land. This arose in a criminal case, Texas v. Johnson, 491 U.S. 397 (1989). Johnson was charged in Texas with flag burning and argued that his actions were symbolic speech. Quoting the Court of Appeals, the Supreme Court said:

Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant’s act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly “speech” contemplated by the First Amendment.


Id. at 400. 

It then went on to state that “the right to differ is the centerpiece of our First Amendment freedoms” and that “a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.” Id. at 401.

Roundly denounced at the time of its publication during the Reagan era, the opinion should be a rallying cry for proponents of the Second Amendment. The First Amendment merely suggests that the right to free expression may not be diminished, yet the Supreme Court has effectively said it cannot even be regulated except as to time, place and manner. Restrictions on the content of speech (with the puritanical exception of pornography) are disallowed.

Does this protection actually overreach the contours of the rights enumerated in the First Amendment? Arguably it does. Speech is speech, but flag burning involves both procuring a flag and lighting it on fire. There are two components of action (not speech) that make up the activity that could and perhaps should be regulated. But they are not, because the use of the word “abridge” has been extended to mean “trifle with.” Johnson was a 5-4 decision with Justice Rehnquist writing a dissent that brings tears to the eyes of anyone who has ever saluted Old Glory. His dissent has been relegated to the dustbin of history, and across the country hoodlums desecrate the flag with abandon. But here are the two best things about that desecration. First while you can burn and destroy the flag as an object of cotton and dye, you cannot desecrate and cannot destroy the symbolic speech that is that flag. You cannot destroy the gallantry of the men who fought their way up Mount Suribachi to plant it, or the brave acts described in Whittier’s poem “Barbara Frietchie.” You can spit on it, stand on it, rip it and burn it and you will never destroy the love that true patriots have for this country. No protest is powerful enough to do that.

Here’s the second thing: if we import the reasoning and rationale of Johnson into Second Amendment cases, which also arise predominantly in the context of criminal cases, then you infuse new vitality into a badly misinterpreted amendment.

Again, let’s start with the actual language. The Second Amendment states:

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.

While freedom-haters frequently seize on the italicized portion (which is a dependent clause that does not stand alone as a sentence), the actual prohibition comes in the independent clause, and says that the right to keep and bear arms “shall not be infringed.”

Even Justice Scalia fell prey to the idea that the right was subject to reasonable regulation, or, as he phrased it “was not unlimited.” Scalia stated “just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. 285 (2008)[2]. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” Perhaps Justice Scalia was throwing the liberals a bone, but the fact of the matter is that the text of the amendment does not support this “reasonable regulation” approach.

Infringe means “to encroach upon in a way that violates law or the rights of another.” It comes from the Latin infringere to break, break off, weaken, destroy, from in- 2in- + -fringere (from frangere to break) “Infringe.” Webster’s Third New International Dictionary, Unabridged. 2016.. Web. 01 Dec. 2016. In other words, it is far easier to infringe a right than it is to abridge one. Yet, as between the two amendments, it is the First Amendment that has seen expansion of non-enumerated rights by creation of the concept of “symbolic speech” and by defining the conduct evaluated as “expressive conduct.”

Thus, if we use Johnson as the zenith, and Williams as the nadir of the First Amendment, it would appear that this expansive view of protections is much different in scope that the protections afforded Second Amendment rights where Heller is viewed as a victory solely because it protects an individual’s rights, as opposed to the rights of a militia as a collective entity.

This is why Second Amendment jurisprudence requires the appointment of a thinking justice willing to go to the history and analyze the Second Amendment in the same way that liberals have used the First Amendment to expand the right to free expression and to include things like privacy in the penumbra of constitutional rights (Griswold v. Connecticut).

Using the Johnson v. Texas approach taken by the Supreme Court in that case, carrying concealed weapons should be a constitutional right because while fashion and firearm design did not allow weapons to be concealed easily during the 18th and 19th centuries, times change and concealed weapons should be considered part of the penumbra of constitutional rights protected by the Second Amendment. More importantly, if the word “infringe” is given its full and natural meaning, anything that curtails the right to keep and bear arms and does not reach the level of harm to the public in the mold of something like child pornography should be constitutionally permitted under the Second Amendment.

The United States Supreme Court needs a judge that is capable of taking up the analytical approach used by Scalia, and molding it aggressively to shape constitutional rights for the future.



[1] See e.g., Mo. Rev. Stat. 1.010 adopting the common law but noting that “but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.”

[2]           Williams was a child pornography case, the most extreme example of a prohibition on “expression” as set out by the Supreme Court.

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