The Fourth Dimension of Legal Discussions

In mathematical physics the Minkowski spacetime model depicts our physical universe in four dimensions. The first three dimensions are what we consider traditional space (often represented using x, y, z coordinates) and the fourth dimension is what we consider time. In the field of physics, changes over time are important. I would put forth that the same is true regarding legal discussions.

To justify my suggestion I will used the Second Amendment as an example. The Second Amendment reads:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Advocates of gun control often point at the phrase “A well regulated militia.” They say that the phrase indicates that the founders only meant for the military and police to have a right to keep and bear arms. If we use the modern definitions of the words “regulated” and “militia” this argument may hold water. But the Second Amendment wasn’t written in modern times, it was written two centuries ago.

The definition of words change over time as this article does a good job of pointing out:

There is some predictability in the way words change over time. For example, words can expand in meaning, that is, come to signify a larger group. The word “pimp” once referred to a man who sold the sexual favors of women for money. It now refers to anyone who leads a lavish, ostentatious lifestyle exemplified by fancy cars, clothes, jewelry and women. There is even a TV reality show dedicated to the transformation of junky cars into custom masterpieces. Its title is “Pimp My Ride.”

[…]

But just as a word like “pimp” has widened in its reference, so “girl” has narrowed. In the 14th century, “girl” could refer to a young person of either gender and evolved to denote only young females. (Male children were called “knave girls”; females were called “gay girls.”) And “gay,” of course, has narrowed from anything bright and merry — “A gay time will be had by all!” — to a synonym for the cultural expressions of homosexuality.

Let’s consider the word “regulate.” In modern times we primarily think of the word as being synonymous with control. Another definition, one that was more prominent historically, was to make something regular:

The original intent of the Commerce Clause was to make “normal” or “regular” commerce between the states; thus it was designed to promote trade and exchange not restrict it. Further, it was specifically aimed at preventing the states from enacting impediments to the free flow of “commerce” such as tariffs, quotas and taxes. And since the explicit language of the CSA, like all economic regulation, interferes with the free flow of commerce, it is inherently antithetical to the original intent of the Commerce Clause. (Whether the law could be legitimized by reference to the “police powers” of the state is another matter).

This definition is still used when referring to engineering. To regulate an engine, for example, means to adjust it until it works correctly. Likewise, the definition of “militia” has also changed over time. While the term was used in the Constitution it wasn’t legally defined otherwise until 1792. Today the modern legal definition of militia is defined in Title 10, Subtitle A, Part I, Chapter 13, § 311 of United States code:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Of course that definition was created after the Second Amendment was ratified.

What did the Founders mean when they said a “well regulated militia?” As the term lacked a legal definition at the time the Second Amendment was ratified we must assume that the Founders were using the common definition, which was “a military force raised from the civilian population of a country or region, especially to supplement a regular army in an emergency, frequently as distinguished from mercenaries or professional soldiers.” One interpretation of the Second Amendment would imply the need for a regular, or normal, group of armed civilians and that that need implied civilians had a right to keep and bear arms. Less you think I’m merely pulling a definition out of my ass let me point out that support for what I’ve said exists in the scholarly realm. Namely, the preamble of the Second Amendment is subordinate to the remainder because an armed citizenry is a prerequisite for a militia.

This leads one to question whether or not the modern definition can be used in reference to the Second Amendment. I don’t believe it can as I also believe legal matters must be argued based on the definitions that existed at the time a law was ratified. This is also the reason I don’t give much consideration to the idea that the Second Amendment only applies to black powder rifles.

Black powder rifles were the epitome of military arms at the time the Constitution was ratified. Assuming the Second Amendment only applied to black powder rifles also assumes that the authors were attempting to predict the future. What is more likely? Did the Founders imply that the people had a right to keep and bear only the arms of the time or did they imply that the people had a right to keep and bear the epitome of military technology at any given time? I will not attempt to guess what dead men were thinking but I will point out that it is odd no such specific restriction was written into the Constitution. I will also point out that only the truly foolhardy believe themselves capable of predicting the future with any amount of accuracy. These two points lead me to believe the Founders implied that the people have the right to possess the epitome of military technology, not the specific arms available at the time the Second Amendment was ratified.

Although I chose the Second Amendment as my example I don’t want to imply that what I’ve said only applies to the Second Amendment. Discussion regarding any laws should take the time period it was written in into consideration. Applying modern definitions to words written decades or centuries ago is, in my opinion, dishonest.