What happens when a "strict constructionist" meets a result he doesn't like? That was illustrated this past week when the federal Court of Appeals for the District of Columbia struck down the District's strong gun-control law.
At issue was the Second Amendment. For a short provision, the Second Amendment has generated a great deal of controversy. The Amendment reads as follows: "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."
That language has always seemed pretty clear to me. An eighth-grade grammarian of average skill would tell you that the first phrase, "A well regulated Militia, being necessary to the security of a free state," modifies--or conditions--the rest of the sentence. From this, we might conclude that the framers wrote of the right to keep and bear arms in the context of preserving the militia system that was in place in the United States at the time.
Permit me to step outside of the language of the Amendment for a moment (I do not claim to be a strict constructionist, at least not in the usual sense). In 1791, when the Amendment was adopted, the United States had no army. In 1775, when the Revolution began, it was the militias of the 13 colonies who provided the backbone of the first forces to oppose the British. All through the Revolutionary War, militia forces--for good or ill--remained a substantial part of the American military establishment. Remember, too, that the British Army was the opposite of the American militias: a long-service professional force. It would have been perfectly logical for the framers of the Second Amendment to regard the establishment of such an army, particularly if there was no militia to guard the rights of the people as anathema.
Today's militia is the National Guard.
So, did the DC Circuit declare that the District's gun-control law must be interpreted in light of the states' interest in maintaining a militia? (Or did it note that, as something other than a state, the District might not even be covered by the Amendment?) Nah. That would have led to the wrong result.
Writing for the majority, Judge Lawrence Silberman said, according to The New York Times, “It seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as ‘Congress shall make no law disarming the state militias’ or ‘states have a right to a well-regulated militia.’"
To begin with, this is not strict constructionism: that doctrine would look to the language of the provision at issue as the key to its meaning. Judge Silberman, instead, offers his own interpretation. That can be a respectable means for interpreting the Constitution, but it's not strict construction.
But then the judge goes off on what courts used to call "a frolic of his own." He actually proposes alternative language for the Amendment. Why? Because to read the language of the Second Amendment as written must lead to the conclusion reached by nine of the ten courts of appeal that have considered the question: that the Second Amendment relates to the establishment of a militia, not to the private possession of firearms.
Mightn't we expect that a judge of the second-highest court of the land would have sufficient respect for the men who wrote the Constitution that he or she would refrain from trying to re-write their words, or from criticizing the reasoning that led them to write our founding document the way they did? Mightn't we hope that judges will interpret the Constitution by trying, as hard as they can, to avoid decisions dictated by political ideology?