Peter Robinson: Second Amendment, 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 abridged." Now on this very program, we've had historians come on and say, that clearly was intended to give individuals the right to own arms. And we've also had historians come on and say, no, no, no, we've done the research, looked at the documents, the Framers intended only to permit states to raise militias of their own, quite a separate matter from whether individuals have the right to bear arms. Now I, as a layman, can't choose between these historical views. There's at least, in good faith, you've got bright people suggesting there's historical ambiguity. What do you do with that?
Judge Bork: A judge sits down and decides which is the more persuasive evidence. The reason that people are called judges is because it requires a judgment. They're not mathematicians. They can't take a premise and work out inexorably to a result. Scalia and I were on the same court. We both were originalists, believed in the original understanding. Occasionally we would disagree strongly about what that meant. Now that was only in one percent of the cases we sat together on but nevertheless.
Peter Robinson: But still, reasonable people, both attempting very hard to be faithful to the original understanding, can indeed disagree.
Judge Bork: Can disagree. But the important thing is that they stay within the same framework. That is, one thing we could always agree on was that you can't make up new principles and say that they're in the Constitution. We could disagree about the application of existing principles.
Peter Robinson: Okay. And so one of the tools in your toolbox as a judge in original understanding then is historical research?
Judge Bork: Oh sure.
Peter Robinson: That becomes tremendously important. And it would be the case that if new research began to emerge, that over a decade or so suggested that the Framers did want individuals to bear arms or did not…
Judge Bork: Yeah.
Peter Robinson: … the judge would presumably revise his opinions accordingly. You're constantly seeking the best understanding you can get of their understanding. That's the whole method.