Why Some Civil Rights are Conserved and Others must be Earned

Consider the following calls you may hear outside a courthouse: “You can’t take away our right to bear arms!” “They’re coming for your guns!” “The Founding Fathers protected our right to own firearms!”
 
Now consider these: “Give us the right to vote!” “Let us marry who we want!” “We deserve equal rights!” “My body, my choice!”

The first set are typical responses to any potential threat to the right to bear arms—a protection guaranteed by the US Constitution. The second set consists of calls (past and present) for civil rights—also protected by the US Constitution. So, what’s the difference? I argue it comes down framing. The reason the pro-gun movement has been so successful is that the Second Amendment is positioned as a right to be conserved while other civil rights must be earned. Gun owners simply continue to keep their guns. Alternatively, women earned the right to vote, same sex couples earned the right to get married, Black Americans earned American citizenship.
 
These calls to action are framed differently because of how the Supreme Court interprets the Constitution. To understand the problem, let’s turn to social media. In January of this year, Asher Perlman Tweeted: There is no one I have less in common with than the me who wrote my Facebook statuses circa 2008. It’s a sentiment that hit home for lots of us, and I’ll admit to cringing when I read my Facebook memories. The obvious takeaway is that we have all changed over the past 14 years. Something that was funny or profound has not aged well. But it is also a reflection of how much our world has changed. Our culture, politics, fashion, etc., are not the same as they were in 2008, so a statement made then might literally not make sense now. Proclaiming “I’m Team Edward” might spark an intense debate in 2008 but get looks of confusion in 2022. Simply put, context matters, be it chronological or historical.
 
If 2008 was a long time ago, what about 1789? Nobody argues the significance of the Constitution, but a lot has changed since it was written. It would be logical, then, to take those changes into consideration when interpreting it, right? The current Supreme Court disagrees. They interpret the Constitution based on the original understanding of the text at the time it was adopted. That is, they read the words as they were intended to be understood in 1789. No updates, no refresh button. Perhaps it is not surprising that a conservative court would adopt this ideology. To conserve something means to protect it from change or alteration, and the goal of originalism is to conserve the original meaning of the text.
 
This interpretation is what gives gun advocates such a strong argument. Gun owners did not win the right to wield AR-15s, they conserved it—even though the AR-15 was an unthinkable technology in 1789. The originalist perspective allows judges to place it under the umbrella of “arms” in the Second Amendment. That way, it represents something you’ve always had but could be taken away—not something you must earn. Women, people of color, and the LGBTQ+ community, on the other hand, have not enjoyed such broad interpretation of the 14th Amendment. Ratified in 1868, somehow, they fell outside the umbrella of “all persons born or naturalized in the United States.” Therefore, when Black men (1870) and then women (1920) won the right to vote, and same sex couples won the right to get married (2015), it was messaged as something the courts awarded them. These groups had to ask for [and march for, and fight for, and die for] something that was, constitutionally, already theirs. But an originalist interpretation made it seem as if these civil rights were generously bestowed upon them.
 
So, what is the best way to interpret a centuries-old document? A textualist “hear[s] the words as they would sound in the mind of a skilled, objectively reasonable user of words.” The key difference is it considers context, which seems reasonable. This view takes nothing away from the historical relevance of the document, (after all, your 2008 Facebook status was insightful, hilarious, or whatever you were going for at the time), it simply acknowledges that things have changed over the past 233 years. The argument is not that newer equals better, rather it offers alternative perspectives. If John Adams were alive today and needed major surgery, he’d probably elect to undergo anesthesia (invented in 1846). He might then post about it on Facebook (launched in 2004)—or not. Either way, he would merge his previously held beliefs about medicine and communication with newly available resources to make an informed decision in his personal best interest (I bet he would be a TikTok guy actually). In the same way, our courts should use every available resource when making decisions in society’s best interest.
 
The upcoming Supreme Court term includes cases on gerrymandering, affirmative action, voting rights, and LGBTQ+ rights. The latter involves a web designer who does not want to create websites celebrating same sex marriages. Will the Court allow the business to discriminate against same sex couples, thereby conserving free speech of the web designer? Or will same sex couples have to earn the right to patronize a local business? Perhaps it’s time to flip the script, to take a page from the gun right advocates and frame LGBTQ+ rights as something to be conserved. After all, you should not have to earn civil rights.