Dem
51
GOP
49
Some readers may be familiar with the books of A.J. Jacobs. His shtick, which we assume was inspired by the old Slate "Human Guinea Pig" column, is to commit some significant amount of time (usually a year) and effort to adhering to a particular way of living, or to performing a particular task. Titles from him include Drop Dead Healthy: One Man's Humble Quest for Bodily Perfection, The Know-It-All: One Man's Humble Quest to Become the Smartest Person in the World and The Year of Living Biblically: One Man's Humble Quest to follow the Bible as Literally as Possible.
His latest experiment has just been published as The Year of Living Constitutionally: One Man's Humble Quest to Follow the Constitution's Original Meaning. As you might infer from his previous titles, he committed to living as much of a 1790s lifestyle as was possible for a resident of modern-day New York City. And yesterday, he posted a brief essay from the book in which he talks about the challenges of exercising his right to carry an 18th-century musket everywhere (turns out it's very heavy, it's hard to get gunpowder that won't cause the gun to explode, and it aggravated his wife Julie).
Since he was armed with a musket in accordance with the Bill of Rights, Jacobs also endeavored to form a militia:
Incidentally, in case the gun control side is correct I figured I should express my Second Amendment right to form my own well-regulated militia.
It didn't go well. The modern version of New York's militia is called the New York Guard and is part of the state government. Apparently they don't want any competition.
Simply asking Julie to start a militia with me might count as a felony crime. The New York State military legal code states that it's a felony to "assemble or conspire to assemble with one or more persons as a paramilitary organization."
I figured I'd better get permission before conspiring to assemble. A friend of a friend is a lawyer for New York State, but she declined to talk to me. I resorted to emailing Governor Kathy Hochul through the New York State web page to ask for permission. Governor Hochul sent a response surprisingly quickly.
"Thank you again for writing and for helping to make New York the beautiful and diverse state that it is. It's my great honor to serve you as we lead the way forward."
So ended my quest to form a militia.
So, both schadenfreude and freudenfreude this week are about New York politicians. That wasn't by design.
Anyhow, the clear subtext here is "Does originalism make any sense at all?" And in case anybody missed it, Jacobs spells it out in the essay:
I've recently become fascinated by the debate over how we should interpret our nation's founding document. How much should the meaning evolve, and how much should it be beholden to the past and tradition? Should we search for the original meaning, or is the Constitution a living document? It's a vastly important question. The Supreme Court's view on this has guided their decisions on women's rights, gun rights, environmental regulations, and religion.
His ultimate conclusion, not surprisingly, is that originalism makes little sense, particularly when it comes to the Second Amendment. Especially since, as Jacobs points out, part of gun ownership in the 1790s not only involved making sure your guns were registered, but making them available for inspection, in your home, by government officials. Presumably, a lot of the "Don't Tread on Me" folks today would not be pleased by that.
We think this is a pretty clever, thoughtful, and not too off-puttingly aggressive way to engage with a very important political and legal question. And that is why we pass it along.
Have a good weekend, all! (Z)