The fallacy of judicial ‘originalism’

The fallacy of judicial 'originalism'

Your story, “Kavanaugh could have major impact on gun laws,” places President Donald Trump ’s Supreme Court nominee squarely in the group of “activist conservatives who say they are enforcing the original meaning of the Constitution,” in this case the original meaning of the Second Amendment. Originalism is the judicial interpretation of the Constitution that purports to adhere to the original intentions of the founders who wrote it. The most famous practitioner of originalism was the late Supreme Court Justice Antonin Scalia who said the Constitution is “not a living document. It’s dead, dead, dead.” If what the original authors of the Constitution meant guided today’s originalists and if the Constitution is a dead document, then the right to keep and bear arms would mean today the kind of arms prevalent in the 18th century. Also “the right of the people to keep and bear arms” would be constitutionally limited to members of “a well regulated militia.” That is clearly not the case. Should the conservative “originalists” on the Supreme Court rule that people can bear assault and semi-automatic weapons and carry them concealed in public, we can conclude originalism has nothing to do with the original meaning of the Constitution and is simply another justification for conservative judicial activism. — Bob Barth, Chicago Submit a letter to the editor here or email letters@chicagotribune.com .

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