Pragmatism v. Originalism: A Mistrial?

Abstract

In 2007, Shirley Katz, a high school teacher in southern Oregon, went to court to challenge her school's policy that prevented her from bringing her legally owned pistol to her workplace. She had a concealed weapons permit and claimed that she needed to bring her weapon to school because she feared for her personal safety; she had taken out several restraining orders against her former husband and she feared that he might appear at her workplace and that she would be in danger. Besides this practical reason, she claimed that she had a constitutional right to arms. (After two years of litigation, the Oregon Court of Appeals eventually ruled against her request and in favor of the school district's prohibition against allowing weapons at the school.)The Second Amendment to the United States Constitution reads as follows:A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and arms, shall not be infringed.What, exactly, does this mean? The content of the expression bear consists of two words, and arms. Does arms mean: own, possess, carry, produce, sell, and perhaps other terms? Does arms mean: knives, torpedoes, battleships, biological toxins, and perhaps other terms? In addition, what is meant by the people in the amendment's wording: is it meant distributively (that is, to each and every person) or collectively (that is, to the population of citizens as a whole)? Does the Second Amendment say, or at least imply, that I, David Boersema, have the right to own and keep in my home semi-automatic weapons or the ingredients for constructing chemical explosives? How are questions such as these to be answered?The Supreme Court of the United States has answered, or at least addressed, them on a number of occasions. For instance in 2008, in the case of District of Columbia, et al. v. Heller, the Court overturned a District of Columbia law that banned handgun possession by making it a crime to carry an unregistered firearm and prohibited the registration of handguns; separately it provided that no person may carry an unlicensed handgun, but authorized the police chief to issue 1-year licenses; and required residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed a suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibited carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibited the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. But the Heller case addressed only federal laws; it left open the question of whether Second Amendment rights protect gun owners from overreaching by state and local governments. Two years later the U.S. Supreme Court extended their ruling and ruled that The Second Amendment's guarantee of an individual right to arms applies to state and local gun control laws. On what basis did and could the Court make such rulings?1. Legal and judicial interpretationLegal language, because it is language, requires interpretation. In addition, because legal language is not (merely) descriptive, but is (also) exhortative, it especially requires interpretation. Laws and statutes (at least many of them) do not simply state what is the case, but are one of our codified means to regulate our behavior, to say what ought to be the case. …