Column: ‘Originalism’ and the Second Amendment

Column: ‘Originalism’ and the Second Amendment

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 14th 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 […]

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