Reading your chosen article and topic, I am working my way through what implications may arise from determining the case on a rationale of “text, history, and tradition” (Hardy, 2022, p. 3). Specifically, I was surprised that the case was decided in this way – moving from exploratory law to settled law (p. 2). It seemed to me that Hardy identified more poignant issues which should have been addressed, rather than just the historical threads.
In Bellia & Bradford’s (2022) Constitutional Law of Interpretation they go to great detail explaining that rights could only be alienated through clear and express terms. There is no such thing as ambiguous or an open-ended transfer of sovereign rights (p. 535). Regardless of the interpretive method, I suspect most studies would agree that the early Americans did not expressly transfer their rights to owning a firearm. If the Court was so determined to rest the case on text and tradition, I find it odd that they did not address the “being necessary to the security of a free State” language of the 2nd Amendment. Of course, neither the Framers nor the average citizen at the time would have rationally thought to expressly alienate themselves from the right to secure their free State which they had just established through the Declaration of Independence. In fact, by declaring independence and autonomy, they inherited the burden of responsibility, obliging them to defend their State.
Hardy aptly points out that the Court did not address important particulars built into the basis of the dissent’s opinion. Notably that “Courts have sometimes too lightly assumed that common-law restrictions and enactments applied to the American colonies, and thus that early Americans would have seen these measures as applicable to them and implicitly defining their rights” (p. 15). When we consider the topic of constitutional interpretation, it is prudent that we challenge not only our method of interpretation, but also our assumptions and starting points. Hardy goes on to point out that “Americans were bound by the common law when they wanted to be” (p. 15). This seems to be the very essence of the issue. The lack of representation (or rights) compelled the early-Americans to declare independence, and in their attempt to formally adopt a system of rules they were selective in applying what they believed would strike a proper balance – while adopting protective measures (balance of power, etc.) to ensure its posterity. Hardy also notes that:
Colonies would make laws to govern themselves, conforming to English common law where feasible and varying from it when not, so long as the variances were not “repugnant” to the common law. These standards were understood to cover both the judge-made common law and statutes declarative of or implementing common law. (2022, p. 16)
Using the common-law, or statutes of Northampton, to justify the dissenting opinion would fail to recognize the full context of the Declaration of Independence and subsequent establishment of a new government. “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions” (Brennan, 1985). If it is arrogant to attempt ascertaining the originalist viewpoint, wouldn’t it be even more difficult to assess the vantage of medieval forms of law?
I’m fully in agreement with your assessment of the Christian perspective on the topic. The true issue is sin and those that unjustly use violence, in any form, for coercive means. In the statutes of Northampton, it was regulation about swords, daggers, and lances – today it happens to be guns – and in the future it may be regulation on other objects used to perpetrate violence and crime. Luke 11:21 states that “When a strong man, fully armed, guards his own house, his possessions are secure” (NASB). The text here certainly supports the inherent right to self-defense, and I would submit that the responsibility extends to the strong man, fully armed, guarding his own State.
References
Bellia, A., & Bradford C.R. (2022). Constitutional Law of Interpretation. Notre Dame Law Review, 98(2).
Brennan, W. (1985). Speech by Justice William J. Brennan at Georgetown University. October 12, 1985. Retrieved from: The Great Debate: Justice William J. Brennan, Jr. – October 12, 1985 | The Federalist Society (fedsoc.org)Links to an external site.
Hardy, D. T. (2022). New York State Rifle and Pistol Association v. Bruen: Originalism and the Relevance of Common Law and Reconstruction-Era Restrictions on Exercise of a Right. Bruen: Originalism and the Relevance of Common Law and Reconstruction-Era Restrictions on Exercise of a Right (September 1, 2022). https://dx.doi.org/10.2139/ssrn.4206558Links to an external site.
New American Standard Bible. (2011). BibleGateway.com. Retrieved from: http://www.biblegateway.com/versions/Links to an external site.
N.Y. State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387, 2022
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