Second Amendment Originalism is Only Difficult to Determine If You’re Willfully Ignorant

Tom Knighton:

When it comes to the Constitution, I’m an originalist.

The reason is very simple. There’s no record anywhere of the Founding Fathers having any intention of us interpreting anything based on our current time and mores instead of the words as they were written at the time when the Constitution was ratified.

If we could go back and ask them, I’m pretty sure they’d see that as a road toward tyranny, since all someone has to do is claim that the words “shall not be infringed” actually means “shall not be upheld” or something simply because people of that day aren’t fond of private gun ownership.

And back in the day, our Founding Fathers weren’t writing laws like we see today, where you need a juris doctorate just to understand what the hell the law says. The Constitution is written rather plainly, where anyone can read and understand it.

Unless, of course, you write for Slate:

Why are we stuck with such lax gun safety laws when stricter regulation is so popular? Congress and state legislatures have struggled to do much about these pervasive and deadly problems in large part because of our current Supreme Court—and in particular its past 16 years of radical pro-gun jurisprudence.

Since 2008, the court has radically departed from centuries of case law on gun regulations and the Second Amendment, making it astoundingly difficult for lawmakers to implement even the most basic and commonsense of gun laws. The departure had to do with the rapid rise of originalism, the legal theory that claims to interpret the Constitution according to its “public meaning” at the time of ratification. When it comes to guns, this effort stems largely from a 2008 case that has proved to be the original sin of originalist constitutional theory: District of Columbia v. Heller.

Claiming that there is a singular, discoverable intent or meaning that can be derived from the founders’ words is bizarre. If you have ever followed the passage of a law through a statehouse or Congress, you have seen that many different people have many different ways of understanding and interpreting the very words they are putting into legal effect; if you have ever read the Federalist Papers or even recall much of your high school American history class, you may remember that there was robust conflict and compromise over the Constitution, including serious disagreement as to what various words and ideas might actually mean.

Scholars still argue over the meaning of the Ten Commandments, which are ostensibly the word of God himself. Historical political leaders, just like present ones, were not a unified bloc in full agreement over the limitations and entire meanings of the laws they were passing. They were human beings using the English language, with all of its limitations. The founders were also keenly aware that they were setting forth rights that would govern not just in their today but, they hoped, in a faraway tomorrow, and that they would need to be interpreted in an ever-changing country.

Now, that last line of argument isn’t necessarily wrong. They were writing a guideline for a government that they hoped would stretch into the ages. They may not have known how “ever-changing” it would be, but they had a good idea.

Yet this idea that the Founding Fathers would have had differing opinions on something like the Second Amendment because of language’s limitations is a terrible argument to make.

First, let’s remember that this idea that meanings are fluid and are based more on perception is a fairly modern one, rooted in postmodernism’s rejection of objective standards and rationality. In fact, the Founding Fathers were very much on the other end of that particular spectrum, believing rationality to be inherently good and beneficial.

As such, we can safely understand what the vast majority of them believed when they supported the phrase, “A well-regulated militia being necessary to the security of a free state, the people’s right to keep and bear arms shall not be infringed.”

This is important because originalism hinges on the idea that most people agreed on what those terms meant, and there’s zero evidence they didn’t and the author of this piece–part of a series seeking to undermine originalism itself–can’t provide a single example of how various lawmakers of the time had differing opinions on any part of the Second Amendment or any other part of the Constitution.

They can’t show that “the people” in the Second Amendment somehow refers to the states, despite “the people” being used everywhere else in the Bill of Rights to mean individuals while “the states” refers to the states.

They can’t find a single instance of a Founding Father even hinting that the Second Amendment was anything but absolute. They can’t find where any of them said anything akin to it only applying to the technology of the day or any other pet interpretation some try to use to twist originalism on its head.

Moreover, they can’t show how their “Living Constitution” approach can’t lead to tyranny simply by shifting interpretations in such a way that the Constitution becomes meaningless. Then again, I’ve long suspected that they can’t simply because that’s the goal, but I’m not exactly trusting of these people these days.

The text of the Second Amendment is plain to read. It’s not difficult to understand or interpret because our Founding Fathers likely wanted everyone to be able to read and understand what the government can and cannot do. They wanted the government to be held in check by the people, which means we have to know what is permissible and what isn’t.

It’s not difficult unless you’re willfully ignorant, too stupid to understand words, or a would-be tyrant looking to justify your efforts.

Then again, this is Slate. It could any of the three.