The Supreme Court’s decision to hear a case pertaining to New York’s strict limits on carrying guns outside the home provides conservative justices the opportunity to apply one of their pet theories: “originalism.” If they are intellectually honest about doing so, the restrictions will stand.

One of conservatives’ favorite tropes over the past several decades is a defense of the “original intent” of the founders. Conservatives have deployed this judicial doctrine against what they decry as judicial activism, rulings on the part of judges that, conservatives insist, abrogate the separation of powers mandated by the founders in the Constitution. Curiously, however, these same conservatives have yet to apply “originalism” to the Second Amendment.

The proper approach to the Constitution, these “originalists” argue, is to discern what the founders intended rather than treat the Constitution as a living document that articulates fixed principles that must be adapted to changing historical and cultural circumstances. As the late Antonin Scalia, the Supreme Court justice most identified with originalism, said in 2012, “The Constitution is a static being.” A decade earlier, Scalia had declared, “The Constitution I apply is not living but dead, or as I put it, ‘enduring.’ ”

Originalists, for instance, insisted that the Equal Protection clause of the Fourteenth Amendment should not be applied to sexual orientation and the right to marry. Because the amendment was drafted to protect freed slaves, the argument goes, it has no applicability to same-sex marriage.

For Scalia and other originalists, determining original intent requires, “immersing oneself in the political and intellectual atmosphere of the time — somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.”

Some conservatives have taken originalism to ridiculous extremes. Years ago, while touring the South with students from the Columbia School of Journalism, I sat in shocked disbelief as Roy S. Moore, former chief justice of the Alabama Supreme Court (and, more recently, defeated Republican nominee for the U.S. Senate) informed us that the free exercise clause of the First Amendment applied only to Christianity because the founders did not know any religion besides Christianity. That assertion, of course, is demonstrably false — the founders were well aware of Jews and Muslims as well as other religions — but it illustrates conservatives’ almost slavish allegiance to originalism.

Let’s return to Scalia’s comments about “immersing oneself in the political and intellectual atmosphere of the time” and shift our attention from the First Amendment to the Second Amendment, which reads, “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 infringed.”

Surely, any self-respecting originalist, someone sincerely trying to understand “the political and intellectual atmosphere of the time,” would not ignore the full text of the amendment. Although the National Rifle Association and other gun advocates routinely quote the second half of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” a more honest reading would include the initial clause: “A well regulated Militia, being necessary to the security of a free State …”

Indeed, historians have demonstrated that the founders were eager to ensure that militias were properly armed against the British. Very likely, therefore, the founders intended to secure the right to bear arms for members of militias.

(Whenever I see a gun enthusiast swaggering with a firearm, I’m tempted to ask — very politely, of course, and in a conversational tone — the name and location of his militia. Tempted, as I say, but I’ve found that discretion is the greater part of valor when dealing with someone heavily armed.)

Even if we set aside the militia argument, an originalist approach to the Second Amendment — one concerned about “the political and intellectual atmosphere of the time” — would surely strain to justify a constitutional right to brandish the modern weapons used to create the carnage we have seen again and again. Did the founders really intend to ensure civilian access to the AR-15 — essentially a civilian version of the military’s M16 rifle — that a mentally unbalanced teenager used to kill 17 in Parkland, Fla.? Or the semi-automatic weapons used in Boulder, Orlando, Las Vegas, Sandy Hook, Aurora, San Bernardino, Pittsburgh or Midland/Odessa? (I’m sure I missed a few in that accounting.)

A true originalist might reasonably argue for the constitutional right to wield a musket, but modern weapons of war — with their power, range and capacity — would surely go beyond the bounds of original intent. The founders had no knowledge of such weapons. Instead, the National Rifle Association has announced yet another advertising campaign, this one for $2 million, to ensure “constitutional rights” and thwart any attempt at sensible gun safety, and lawmakers in Texas recently voted to allow anyone to carry weapons without a license.

After still more horrific shootings — Indianapolis; San Jose, Calif.; Miami Beach, Fla. — we hear once again that conservatives’ “thoughts and prayers” are with the victims’ families. Rather than accept another round of empty pieties, we should demand that they, along with Scalia’s acolytes on the Supreme Court, embrace their own rhetoric and apply the doctrine of original intent to the Second Amendment, thereby clearing the way for sensible measures on gun safety.

Randall Balmer, a professor at Dartmouth College, is the author of Solemn Reverence: The Separation of Church and State in American Life.

(3) comments

Khal Spencer

It never fails that commentators will leave out key information that goes at odds with their soapbox. That holds true for both Gun Nut Nation and Gun Control Nation.

First, if the author of this piece was honest, he would note that back at the founding of the republic, the Militia was pretty much every able bodied male who could shoulder a musket. So the militia was essentially, the people. Which, perhaps, is why the writers of the Bill of Rights gave the people the right to keep and bear arms. One could assume the founders would not want devious political leaders to confine the militia to their friends.

Two, the author makes a good point that muskets are not as lethal as modern military arms. So too, modern communication systems (television, radio, the internet, social media) is far more powerful than riding a horse through the countryside or manually printing a page. Perhaps the author thinks the First Amendment should only apply to communication tools available at the dawn of the republic as well.

Khal Spencer

There is a fair amount of scholarship on this issue, for anyone actually wanting to learn something. Both sides of this debate are careful to cherry-pick their "facts" to fit their conclusions.

Duke Univ. Law School

Volume 80, Number 2 (2017)

The Second Generation of Second Amendment Law & Policy

Adam Winkler, Law Professor, UCLA, "Gunfight: the Battle over the Right to Bear Arms in America" ISBN: 978-0-393-34583-4

Federalist Papers, #29 (Hamilton) and #46 (Madison)

And lots else.

Emily Koyama

Yes, this is the standard tired, tired, old militia argument...

Obviously, in order for militias to be formed at short notice, the populace must be armed.

As for the founding fathers having no knowledge of future weapons, that is also nonsense, because during each of their lifetimes they saw huge advances in the capability of fire arms, so they had to know that firearms would have advanced still further.

Looking at everything in the 2nd Amendment the section that carries the most weight is a very simple phrase... "The right of the people to keep and bear arms shall not be infringed".

You can mess around with "originalism" all you want but that part is very clear!

In short, this author had nothing new to say... Just rehashing same old, same old stuff, with the usual sprinkling of emotional appeals thrown in.

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