May 30, 2022

Originalism and the Second Amendment

The Second Amendment, at least insofar as it has been interpreted by the Supreme Court and has been treated as a political third rail by Congress, is proving to be the most dangerous amendment of the Bill of Rights. Its sacrosanct status is making the country increasingly lawless and dangerous. The number of guns in the country continues to increase, and the restrictions placed on gun possession and use, contrary to all reason, continue to decrease. For too many Americans, preserving what they see as their gun “rights” is more important than protecting the lives of young children.

We need to consider the historical context of the Second Amendment, which reads as follows:

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.

The amendment, along with the rest of the Bill of Rights, became effective on December 14,1791, not long after the Constitution itself was adopted as our fundamental body of law.

Having so recently won its freedom from Great Britain, the new nation was concerned about maintaining its security and protecting its independence. The Continental Army, which was established by Congress on June 14, 1775, was largely disbanded after the Treaty of Paris. There was strong sentiment against maintaining a standing army. Providing security for the young country fell to the militias and other local officials.

The state militias were expected to handle local conflicts and could be called upon for national defense if need be. They were composed of citizen soldiers who were required to provide their own weapons. Clearly—perhaps not so clearly to Supreme Court justices—the Second Amendment was designed to maintain the militia system, which was well-established when the Bill of Rights was proposed.

The “arms” of the amendment referred primarily to muskets. The pistols and rifles of the 1790s were primitive affairs, and bullets, as we have come to know them, had not yet been invented.

In District of Columbia v. Heller (2008). the Supreme Court seemingly ignored the introductory clause of the Second Amendment and declared that the “right” of the amendment applied to individuals for self-defense at home. It seems likely that the court will expand individual gun rights even further in future decisions.

Republican justices are fond of the concept of originalism, that the Constitution and laws mean only what they meant when they were adopted. If this judicial theory is applied to the Second Amendment, should it not only allow individuals to possess muskets or other arms available in 1791? In his draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, Justice Alito argues that the Constitution cannot grant a right to obtain an abortion because abortion is not mentioned in the Constitution. (Nor are women, for that matter, as they don’t seem to have mattered much in the late eighteenth century.) Under originalism, how can “arms” encompass modern pistols and assault weapons, which were clearly not even imagined in 1791?

Of course, originalism is nonsense. Carried to its logical conclusion, it ossified our laws, leaving them trapped in a time period ignorant of the modern world. If the Constitution does not give women rights over their own bodies, neither should the Second Amendment give a right to own assault weapons and other modern “arms.”

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