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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

The Supreme Court's Newest Justices Produce Some Unexpected Results - The  New York Times

The Supreme Court is expected to make a new ruling about the Second Amendment in June. The case, New York State Rifle & Pistol Association Inc. v. Bruen, will determine whether the Constitution allows individuals to carry concealed guns outside of their homes or if states can require individuals to demonstrate a special need in order to receive a license to carry a concealed gun. Oddly, whichever way the Court rules, that new decision will have always been true. Any change will rewrite history. The pop-culture concepts of sequels and retcons explain that paradox.

How can the Supreme Court have the power to change history? Start with the Constitution: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Constitution also defines the scope of that power (“shall extend to all Cases, in Law and Equity,” etc.) and gives judges the political independence to wield it (since they are to remain in office receiving “compensation, which shall not be diminished” for as long as they are in “good behavior”). But it does not define what exactly that “judicial power” is.

Woodrow Wilson expressed his opinion in 1912: “Living political constitutions must be Darwinian in structure and in practice” and so our Constitution must be “modified by its environments.” Those modification would not be by Congress amending the Constitution but by how the Court interprets it. Wilson describes an evolution of constitutional meaning in response to changes in the surrounding culture. Words that once meant one thing later come to mean something else in a progression—the root of the political affiliation ‘progressives’— of sequels.

James Madison expressed the opposite view in an 1824 personal letter: “If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”

Though words do evolve, according to Madison’s view, all later meanings of words in the Constitution should be rejected. They’re just sequels. That’s the contemporary view of many conservatives. The “proper role” of courts, argues the Heritage Foundation’s Elizabeth Slattery in her 2013 article “How to Spot Judicial Activism,” requires their “neutrally interpreting” the words of the Constitution and later laws “according to their original public meaning.” Slattery echoes Ronald Reagan at Justice Kennedy’s 1988 swearing-in: “The role assigned to judges in our system was to interpret the Constitution … certainly not to rewrite it…. unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but … the personal and capricious rule of a small elite.”

So non-activist judges must bind themselves by each word’s original public meaning. Though the view provides an unacknowledged means for avoiding the murkiness of authorial intent, Madison, Reagan, and Slattery do not account for the role of retconning required by their supposedly conservative approach. Though judicial power does not rewrite the text of the Constitution with sequels, it still revises it with retroactive reinterpretations.

Consider the Second Amendment, which establishes that “the right of the people to keep and bear Arms, shall not be infringed.” The fact that the meaning of the word ‘arms’ has later come to include nuclear arms—as illustrated in the paradigmatic cold war phrase ‘the arms race’—poses no problems since the authors and original public readers of the 1791 amendment were not referring to intercontinental ballistic missiles.

And yet many interpreters of the amendment—who align themselves with anti-activism—also reject the notion that ‘arms’ refers only to muskets. In its 2008 Heller decision, and reiterated in its 2016 Caetano, the Supreme Court “rejected as ‘bordering on the frivolous’ the argument ‘that only those arms in existence in the 18th century are protected by the Second Amendment.’” Regarding the word ‘arms,’ Justice Scalia concluded that the “18th-century meaning is no different from the meaning today,” citing examples of its being used synonymously with ‘weapons’. After establishing this extremely broad definition, which would include ICBMs and other weapons of mass destruction, Scalia then curtails it in two ways.

First that: “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.” While it is presumably true that ‘arms’ was applied to non-military weapons, Scalia implies (and the logic of his claim requires) that it was applied exclusively in that way. It wasn’t. In fact, since the amendment was written when the United States still questioned the efficacy of a standing army and so wished private citizens to have the ability to withstand the assault of a foreign invasion, the non-military claim seems counterintuitive. The opening clause, “A well regulated Militia, being necessary to the security of a free State,” references a military meaning.

Second, Scalia declares that the amendment applies “to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” He adds the adjective ‘bearable,’ derived from the verb ‘bear,’ which he argues indicates that the weapon must be carriable. Though he does not explain his reasoning, he also implicitly understands that the carrying must be accomplishable by one individual without the need of mechanical or other aid. In other words, hand-held.

President Biden agreed with Scalia when he claimed last year: “The Second Amendment, from the day it was passed, limited … what type of weapon you could own. You couldn’t buy a cannon.” The Washington Post fact-checkers awarded Biden “Four Pinocchios,” its worst offense, explaining: “We have no idea where he conjured up this notion about a ban on cannon ownership in the early days of the Republic, but he needs to stop making this claim.” While it’s true that no such ban existed in the early penal code, it was always implied by the Second Amendment according to Scalia’s retconning. Because Biden’s claim was a historical claim, The Washington Post looked at historical documents to support it. They apparently did not look at twenty-first century court rulings that retconned the historical record.

Though he should agree with Biden about colonial cannons, Scalia also wrote: “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” In addition to constraining the size and non-military design of arms, the decision also retconned a constraining purpose of self-defense drawn from historical parallels. In full, Heller retcons the amendment to protect only the right of the people to keep and bear individually carriable, non-military Arms in defense of themselves and the state, both in 1791 and now.

Is that what the authors (or, according to the Heritage Foundation, the original readers) of the Bill of Rights understood the Second Amendment to mean? We can’t know. Did they imagine that a single person positioned in a thirty-second story window could fire over one thousand bullets, killing sixty people and wounding 441 people in ten minutes at a range of 590 yards with arms that were not “specifically designed for military use”? Does their inability to imagine the 2017 Las Vegas mass shooting matter since ‘arms’ might refer to whatever it refers to regardless of anyone’s awareness or intent? Perhaps instead of retconning ‘arms’ with “specifically designed for military use,” a future Court might try to discern the amendment’s original meaning by retconning the term according to its killing capacity.

The Supreme Court’s unanimous 2016 Caetano decision even retconned stun guns into the Second Amendment—a technology even more alien to the 1791 authors and readers than the twenty-two AR-10 and AR-15 rifles with bump stocks and 100-round magazines that Stephen Paddock purchased and carried by hand to his Las Vega hotel suite. Heller did recognize an “important limitation on the right to keep and carry arms,” the prohibition on “dangerous and unusual weapons.” If the adjectives are understood separately, then stun guns are “unusual.” They administer a non-lethal but painful and sometimes briefly incapacitating electric shock through two metal prongs in contact with someone’s body. They are not firearms, but because the stun gun was hand-held, not designed for a primarily military purpose, and used in self-defense, Caetano conforms to the Heller retcon. This is true even though stun guns do not fit the “original public meaning” of ‘arms.’

“What a metamorphosis,” wrote Madison, “would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.” But because Heller is understood as a retcon, it doesn’t take ‘arms’ in its modern sense. It reveals its original sense, which just happens to coincide with its modern sense.

Unless it’s a sequel. Which, according to the FiveThirtyEight article, “The Second Amendment Didn’t Protect Your Right To Own A Gun Until 2008,” Heller is. According to the FiveThirtyEight authors, “the Supreme Court redefined the Second Amendment” and could “expand the meaning of the Second Amendment yet again.” Redefining and expanding meanings with a clear before and after division describes a sequel. Since judicial decisions are by default retcons, describing one as a sequel means the authors are rejecting the retconning. It’s their way of spotting what they consider judicial activism by conservative justices.

The larger disagreement is about reality. Since the past is often unknowable, claims about the past can’t always be verified. Maybe Heller gets the original meaning of the Second Amendment right. Maybe it doesn’t. All we can know is that Heller claims to, and that the claim, like any revealed reinterpretation about the past, is a retcon. We always had the right to carry stun guns.

Come June, we may discover that we have always had the right to carry concealed guns too. Or not. The Court is still writing that retroactive history.

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