Thursday, February 3, 2011

"I'm not a history major, though." He's also not an Originalist.

State Rep. Hal Wick (R-SD) thought it would be funny to introduce a law mandating that people purchase firearms as a way of protesting the federal health insurance mandate.

What he didn't realize is that we used to have just such a requirement, under the Militia Act of 1792.

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

If, upon being presented with this information, Rep. Wick had simply admitted that he'd made a mistake in thinking such a law would be unconstitutional, the story would be over. But that, of course, didn't happen. Instead, he offered an explanation for why it would have been constitutional to mandate gun ownership then but not now:

In the course of the interview, I asked whether this would change his opinion on individual mandates. "No," he said. "I really don't feel like a gun mandate would be constitutional under these circumstances."

What does he mean by the circumstances?

"Well, it was shortly after the Revolutionary War, and it was before the War of 1812," he said, "which may have been something that was on the radar screen -- that they knew there could be another challenge coming from overseas. I'm not a history major, though."

Let's set aside for a moment the obviously ridiculous argument that a war 20 years in the future could justify something that's otherwise unconstitutional whereas a present crisis in health care would not. Notice that he's arguing that something that once was constitutional no longer would be, despite the Constitution's language on the issue remaining unchanged.  That's the antithesis of originalism. Originalists come in various stripes, but the idea that the Constitution's meaning is fixed until properly amended is common to all of them.

I'm not really an originalist, though I practice originalism on occasion (it's a useful tool for determining statutory or constitutional meaning, though it isn't the only one, and it isn't the only valid one). But, in today's GOP, anti-originalism is akin to apostasy. The legal challenge to the health care reform bill's mandate is based on an originalist view of the Commerce Clause. Originalism was the basis for the opinion (and Justice Stevens's dissent!) in District of Columbia v. Heller, one of the most important Second Amendment cases ever decided. For someone who's endorsing both gun rights and the challenge to the insurance mandate to also reject originalism is stunning.

Obviously, in addition to not being a history major, Rep. Wick is also not a constitutional law scholar. Perhaps he'll keep both of those facts in mind the next time he wants to pull a stunt like this.

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