Bring Constitution into the 21st century.

Byline: GUEST VIEWPOINT By Ofer Raban

On June 26, the U.S. Supreme Court made a historic decision interpreting the Second Amendment as bestowing an individual right to keep and bear arms - a reading that contradicted what had been the conventional wisdom of legislators and courts for many decades. This was a divided decision, but the 5-4 split went far beyond the justices' disagreement on the constitutionality of the District of Columbia's gun laws: Their dispute also concerned starkly different visions of constitutional interpretation.

The majority - which held the D.C. gun laws to be unconstitutional - explicitly refused to consider the effects of gun control laws on today's society. "Constitutional rights," said the majority, "are enshrined with the scope they were understood to have when the people adopted them."

In other words, what the Second Amendment requires is strictly what it was understood to require by "the people who adopted" it. It did not matter that those people lived in the 18th century, or that their purpose in adopting the amendment was "to secure ... a citizen militia, which [would] oppose an oppressive military force if the constitutional order broke down" - a concern that is wholly alien to 21st century Americans.

Nor did it matter that America's inner cities suffer from growing gun violence, or that many consider gun possession essential for their self-defense: The question of whether the D.C. gun laws were in violation of the Second Amendment was answered exclusively by what those 18th century people supposedly understood the amendment to mean.

Accordingly, the opinion consisted of citations from 18th century dictionaries, discussions of prerevolutionary debates in the English House of Lords and references to various interpretations of the historical record, while questions regarding the significance of gun regulations in 21st century America were "off the table" - to use the court majority's own words.

The four dissenting justices had a different take on the matter: They, too, discussed the understanding of those who adopted the Second Amendment (though their conclusions were diametrically opposed to those of the majority). But they also asserted that those original understandings were not the end of the matter.The scope of the Second Amendment's right to keep and bear arms, they said, need be determined by considering these 18th century understandings in light of the amendment's purpose and our current conditions - including the impact of the availability of guns on murder rates, the importance of gun ownership for self-defense, or the interests of recreational gunusers.

Constitutional interpretation, said the dissenting justices, cannot simply ignore what is at stake with today's gun laws.

Most Americans would be appalled to learn that constitutional decisions having grave consequences can turn solely on 18th century dictionaries and other historical records - to the exclusion of any engagement with current concerns, needs, policies or circumstances. But such a fundamentalist vision of constitutional interpretation is precisely the "originalism" so enthusiastically championed by Justice Antonin Scalia, and followed - at least in the June 26 opinion - by four other justices of the Supreme Court.

This judicial philosophy - with its deep distrust of judicial power, and its ostensible willingness to curb that power at the price of reason and rationality - should be denounced by all those who believe that constitutional decisions must be defended and justified by reference to the world they govern. The American Constitution is the great instrument that it is because its principles have been applied rationally and reflectively by astute and creative judges,not by wooden automatons worshiping at the altar of mindless textualism and blind tradition.

Ofer Raban is an assistant professor of law at the University of Oregon. A former prosecutor, Raban specializes in constitutional law, legal theory and criminal procedure.