Where are the “Originalists” in the Debate over Gun Safety?
By Randall Balmer
One of conservatives’ favorite tropes over the past several decades in discussing the content of the U.S. Constitution 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.
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 declared, “The Constitution I apply is not living but dead, or as I put it, ‘enduring.’”
Originalists, for instance, have 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. Roy S. Moore, former chief justice of the Alabama Supreme Court (and, more recently, defeated Republican nominee for the U.S. Senate) insisted 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 false – the founders were well aware of Jews and Muslims as well as other religions—but it illustrates some conservatives’ almost slavish devotion 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 anxious 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.
But 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 semi-automatic weapons. Did the founders really intend to ensure the right to the AR-15 that the mentally unbalanced teenager used to kill 17 in Parkland, Fla.? An originalist might reasonably argue for the constitutional right to wield a musket, but an automatic weapon would surely go beyond the bounds of original intent.
After yet another horrific shooting, 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 embrace their own rhetoric and apply the doctrine of original intent to the Second Amendment, thereby clearing the way for sensible legislation on gun safety.
Randall Balmer, a graduate of Des Moines Hoover, is the John Phillips Professor in Religion at Dartmouth College. This essay first appeared in Iowa View and was published Feb. 22, 2018 and is reprinted here with permission of the author.
