THE BLOG
01/03/2013 02:22 pm ET Updated Mar 05, 2013

An 18th Century Constitution in a 21st Century World

I am fascinated by our veneration for the legal acumen of our predecessors. Growing up within a traditional Jewish background, I was taught that we should revere the legal debates of the Talmud, as its protagonists lived closer in time to when the Torah was delivered at Mt. Sinai. That struck me as reasonable for some situations. For example, if you swallow a leech on the Sabbath and want to know whether it is ok to heat some water, it's nice to have a set of books like the Talmud handy (thankfully, it is permissible). But there are some things that the good folks of Babylonia couldn't possibly anticipate, such as the invention of electric shavers, tablet computers, the Internet, and Segways. If the laws were prescribed in more primitive times, how does one adjudicate these new technologies? Naturally, Jews argue over the correct way. On one extreme, ultra-orthodox Jews (also known as Haredi), believe that Jewish law should not deviate from previous time periods. They are distinguishable by their long black coats, white shirts and wide-brimmed black hats as they are enamored with Jewish society as it existed in Eastern Europe during the 18th century. Of course, more progressive denominations of Judaism assert that laws should adapt to change with the times (to varying degrees according to each denomination).

Having largely ignored these matters in my adult life, it came as a bit of a surprise to me that the same fundamental tension has now come to the forefront in the U.S. legal system in the wake of the tragedy in Newtown. While a large segment of the population wants to revisit the concept of effective gun control, many proponents of gun ownership steadfastly clamor for a strict interpretation of the laws of the 18th century Constitution. This kind of Constitutional interpretation, termed originalism, asserts that the meaning of the Constitution was determined in perpetuity when it was ratified back in 1787. Originalism's Rebbe, Supreme Court Justice Anton Scalia, explained in a recent Fox interview:

"What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time."

Having grown up in the context of this Jewish debate, I find Scalia's position both curious and eerily familiar. Simply put, originalism dictates that we should adopt the mindset of yet another 18th century culture. The only things separating the originalist and the Haredi communities are some powdered wigs and breeches. What is it about the 18th century that left us pining? Perhaps it is the suppression of women, who are excluded from both the core of the U.S. legal system (there were no female framers of the Constitution, though we did have a woman sew our flag) and from the Talmud. It probably isn't the health care, as 18th Century doctors argued about the effectiveness of hot or cold baths for treating ailments, while typhus, tuberculosis, and consumption wreaked their havoc. I sure hope it isn't about the slaves (a healthy handful of framers were also slave-owners).

Regardless of the source of 18th century allure, I'm not the first to point out that none of the signers of the Constitution were privy to having witnessed a handheld weapon discharge more than about four times in a minute (for those skilled enough to accomplish that feat, there was still a lot of hassling interspersed between shots, and the accuracy was nothing to write home about). Maybe the framers of the constitution sagely anticipated the development of far more destructive weapons developed in the future. Then again, maybe not, as flintlock rifles were first pressed into regular service in 1610, or close to 180 years before the constitution was ratified. They would be in use for roughly 80 years more. Perhaps they could not have envisioned hand-held weapons that could fire a week's worth of ammunition for a Revolutionary War soldier in a minute or two (and of course those aren't musket balls).

The NRA's stance is naturally congenial with originalism (excepting, perhaps, the most common interpretation of the second amendment prior to 1977). Rather than be at the forefront of a productive discussion on how to reduce gun violence in this country, as they hinted at on December 18th, the NRA has decided to blame video games (since Europe and Asia are still playing Ms. Pacman). Wayne LaPierre went on to advocate that we allow all types of weapons and clips on the street, but prevent violence at schools by employing Barney Fife to protect large buildings from intruders. It has not escaped the public's notice that this strategy was insufficient at Columbine.

Perhaps it is naïve to think we can get all the guns off the street. But it is clear that we can no longer afford to be stifled by originalist thinking when it comes to discussing gun laws and that is exactly what groups like Gun Owners of America would like to do. They have put out an e-petition to deport Piers Morgan who had the chutzpah to promote gun control, because they claimed it was "a hostile attack against the U.S. Constitution". At last read, it had more than 80,000 e-signers. That seems roughly as productive as the 40,000-strong Haredi rally that sold out Citi Field this past summer protesting the dangers of the Internet. At the end of the day, Newtown has once again reminded us that blindly applying 18th century doctrine to a 21st century world comes with an exorbitant price tag.

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