Don't worry, the good Professor doesn't really believe so, either.
He just needs to pretend to believe it so that he can pretend that
gun owners believe in a similarly unreasonable form of radical
originalism. It's too hard to argue against the real 2nd Amendment.
(Photo used with permission of Oleg Volk)
Classically-educated writers are often fond of quoting classically-studied writers like the Roman poet Juvenal, who famously asked, "Quis custodiet ipsos custodes?" or "Who will guard the guards themselves?" Lacking a classical education, your humble Chicago Gun Rights Examiner is limited to the English language in asking today's question: "Who will teach the professors themselves?"
Wait! Don't roll your eyes and pass by; this is not yet another editorial mocking President Obama's credentials as a constitutional law professor. No, our purpose today will be to help another absent-minded professor, Dr. Thomas William Heyck, remember how the Constitution works. Dr. Heyck, Professor Emeritus of history at Northwestern University, recently wrote "Untangling constitutional originalism and gun control," in which he argued that the Second Amendment protects only the right to own flintlock muskets and horse pistols. More on that in our next installment, but this piece concerns Dr. Heyck's peculiar opening lines as published in the Chicago Tribune:
"I've seen the light! After many years of believing that the U.S. Constitution should be made relevant to modern society, I've been converted by the arguments of Supreme Court Justice Antonin Scalia. . . ."
Now, it's not that there's anything wrong with "making the U.S. Constitution relevant to modern society"--if an aspect of the Constitution somehow becomes irrelevant over time. In fact, the folks who wrote the Constitution added a nifty little self-regulating feature called "Article V".
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The problem is that Dr. Heyck goes on to get a little sarcastic in defense of judicial activism, which makes one suspect that he's not talking about amending the Constitution legally. In plain language, Dr. Heyck wants changes made to the Constitution that are too unpopular with the American people to be made under the rules, so he has spent "many years of believing" that the rules should be ignored in favor of having judges make it up as they go along. If he were to write down his way of doing things, the new Article V could still be a straightforward, no-nonsense piece:
The law professors of the United States, whenever a majority of celebrities, actors, lobbyists, and pundits shall deem it necessary, shall propose new nuances and understandings of the words in this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by word or implication by a minority of Justices of the Supreme Court. Should two minorities of Justices with conflicting interpretations emerge, the Chief Justice shall contact Dr. Thomas William Heyck, Professor Emeritus of History at Northwestern University, by whatever means he or she considers best; and Dr. Heyck shall settle the issue by fiat.
Dr. Heyck's position is particularly puzzling in light of the fact that he apparently believes that the Supreme Court is deciding badly on a number of issues--hence his frustration, vented in a major daily newspaper. If judges are so human, so capable of mistakes as to do something so foolish as to disagree with the august and venerable Dr. Heyck, who in his right mind would advocate giving those judges even more power to disregard the written charter of our society?
It gets even stranger. Dr. Heyck's call for judicial activism to replace Article V wasn't even the main thrust of his opinion piece in the Tribune; he treated it as a minor and apparently uncontroversial throw-away line in setting up his real point: that all pro-gun Constitutional arguments originate with and flow from Antonin Scalia, and that Antonin Scalia is not only wrong but ridiculous. It's hard to make that argument against Scalia's opinion in D.C. v. Heller, presumably, so Dr. Heyck built a strawman to stand in for Justice Scalia and take his beating for him.