The phrase "trapped in amber" has become pretty popular among the Supreme Court justices, and it's not really surprising. While it was first used by proponents of the Living Constitution nonsense, it's gotten some play among originalists, too, particularly among Second Amendment cases.
And a question arises as to what exactly that means when applied to gun rights issues.
After all, the more idiotic people try to make out like the originalists' interpretation of the Second Amendment should only apply to muskets, which is moronic. They apply the whole idea of the Second Amendment being "trapped in amber" out like no other interpretation can exist other than history.
It's not just the mouth-breathers on X saying it, either.
Over at SCOTUSBlog, there's a discussion about the phrase, particularly as it applies to the Second Amendment.
The fixation thesis means that something gets “trapped in amber” at the time a law is promulgated, and the constraint principle means that judges are bound to adhere to whatever that something is today. Justice Neil Gorsuch made this point in his Rahimi concurrence:
When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty. We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber”—our only lawful role is to apply them in the cases that come before us.Nevertheless, we have repeated assurances in purportedly originalist opinions that this or that is not “trapped in amber.”
What, then, does originalism say is trapped in amber? Gorsuch calls it “the people’s directions in the Constitution.” Barrett calls it “meaning” with “legal significance.” We might, for brevity’s sake, call it “law.”
This makes the phrasing in Rahimi infelicitous: “These [originalist] precedents were not meant to suggest a law trapped in amber.” Professor Re translates the line: “the Supreme Court denied that the Second Amendment is ‘a law trapped in amber.’”
The problem is, Second Amendment precedents do “suggest a law trapped in amber.” In District of Columbia v. Heller, for example, the court explained that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
What is not “trapped in amber” is law’s application in future circumstances. Here is how the court made the point in New York State Rifle & Pistol Ass’n v. Bruen: “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” The court goes on, as it did in Rahimi, to note that the Second Amendment protects “modern instruments that facilitate armed self-defense,” even if such instruments did not exist at the time of ratification.
In short, to an originalist, the law is trapped in amber; its application is not. (For a deeper discussion of this distinction, see this column from last year.)
Exactly.
The Second Amendment, and other parts of the Constitution, say what they say and mean what they mean. They mean what the authors meant when they wrote them and what the people who ratified them understood them to mean. That doesn't change simply because a new generation really wants them to mean something different.
They have to; otherwise, they mean absolutely nothing at all.
Language exists to communicate ideas across time and space. It's the greatest invention of mankind, greater than the wheel. Only writing, and its impact on language, is close to its importance. The reason I say this is that it's what allowed us to pass on knowledge to the next generation. We didn't just have to show them where to find the best fruit, but could explain why you want this piece of flint for an arrowhead instead of that other one.
But for that to work, you need consistency in the language. Words have to mean things, and while language drift can and does happen, we need to cling to what they meant at the time it was written. There's a reason Christians argue over biblical translations and which are good and which aren't. It's because the Word of God means something, and if it's shifted too much, the Word loses something.
So, when our Founding Fathers wrote things like the Second Amendment, that language cannot be shifted simply because times have changed.
The application, however, has to.
Those were smart men. Ever visit Monticello in Virginia, the home of Thomas Jefferson? It's a fascinating place that, in hindsight, I wish I'd paid more attention to on my visit there than I did, and I was still enthralled by it all. While you can convince me that Jefferson never envisioned the internet, you can't tell me he couldn't envision that technology for communication would march on and that freedom of the press must apply just as evenly for that new environment as it did in his day.
As it does with the Second Amendment.
Repeating arms weren't unheard of in the Founding Fathers' era. Contrary to what anti-gunners spout on social media, they existed. They weren't refined just yet, but they were around. To say that no one who ratified the Second Amendment didn't see that somewhere down the road is stupid.
But if the Second Amendment were truly "trapped in amber" in its application, the fact that these didn't exist in significant numbers might well mean something. Luckily, it doesn't.
