The academic Left has spent a lot of time combatting the constitutional theory of originalism, which holds that the Constitution should be interpreted according to its writers’ intent.
But after recent gun violence in Connecticut and Colorado, lots of liberals have started to embrace a new form of ultra-originalism, at least when it comes to the Second Amendment. They argue that the Second Amendment only applies to muskets, and not to the kinds of guns that were invented after the Constitution was ratified. Ostensibly, this is because the Framers couldn’t have foreseen the invention of automatic weapons. But not even the most vociferous right-wing originalist believes that constitutional protections fail to cover changing technology.
These new Second Amendment originalists, therefore, have much more in common with the Amish than they do with any heretofore respectable school of constitutional thought.
Still, I’m curious where their new theory will lead. Will they next tell us about how freedom of the press only applies to eighteenth century printing presses—and not to TV, blogs, or . . . um . . . newspapers made with post-1789 technology? I’m also interested to read how the freedom from unreasonable seizures protects you against the police seizing your horse, but not your car. And, for that matter, I’m interested to see where they find the Framers’ intent to protect sodomy and abortion through the Constitution. (Or do they now think that those cases should be overturned?) After all, the Framers never foresaw blogs, cars, or widespread abortion any more than they foresaw automatic weapons.
If they don’t make these arguments, why not? Why would they only apply Amish-style originalism to the Second Amendment, but follow an extremely open-ended “living Constitution” for everything else? Even if we assume, for the sake of argument, that guns are more dangerous than any of those other things, that doesn’t establish that the Framers would have wanted them to form a special Constitutional exception, absent some kind of evidence to the contrary. To assume so is to implant the modern idea that dangerous things require heavy government interference onto pre-modern minds. But because the liberal Second Amendment theory purports to only rely on the the Framers’ supposed intent, it cannot honestly do that. The technology argument, then, must either apply to all of the Constitution or to none of it.
Could the answer be that their Second Amendment theory is not, in fact, an honest theory at all? That instead, it is just an after-the-fact rationalizations to support preconceived political positions?