I consider myself an originalist when it comes to the Constitution. I think that the only way it should be considered a "living document" is if you consider the amendment process, which makes it so. It should not be up for reinterpretation.
However, I also think that modern technology doesn't change the landscape of what the Founding Fathers meant when they ratified everything.
For example, I still have free speech while on the phone. I have freedom of the press despite sitting behind a keyboard and using the internet to publish. And I still have a Second Amendment right to an AR-15.
Unfortunately, it seems there are still people who don't understand this.
And, strangely, it took someone at MS Now to actually point that out.
“Applying the late Justice Antonin Scalia’s originalist and textualist test for interpreting the Second Amendment, it seems to me that it’s the right to ‘keep and bear’ single-shot muzzle-loaders that ‘shall not be infringed.’ How does it in any way prohibit the states or the federal government from regulating modern firearms?” – Michael
Hi Michael,
Scalia saw no problem applying the Second Amendment to modern firearms. Writing for a 5-4 majority in 2008’s District of Columbia v. Heller, he said it was almost “frivolous” to claim that “only those arms in existence in the 18th century are protected by the Second Amendment.”
He said the court doesn’t interpret constitutional rights that way. For example, he cited the First Amendment’s protection of modern forms of communication and the Fourth Amendment’s application to modern searches.
Against that backdrop, Scalia said the Second Amendment covers “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
The writer, Jordan Rubin, doesn't seem especially sympathetic to Scalia's ruling, though. He went on to quote the late Justice John Paul Stevens, saying it was the worst decision the Court made while he was on it, which is kind of irrelevant since the decision is still the standing precedent.
He also said that Scalia didn't say there weren't limits and that gun control was completely unacceptable—a point of disagreement between myself and the late justice, who was, on the whole, pretty good. He did say, for example, that the legislature had the authority to ban "dangerous and unusual" firearms.
That's been the basis for assault weapon bans. Not that they're something different than muskets, but are they dangerous and unusual? This also brings us to "in common use."
Again, I don't agree with this concept, but if a firearm is in common use, then by definition, it can't be dangerous and unusual.
Still, I find it more than a little ridiculous that in this, the year of our Lord, 2026, we're still getting people who think originalism applies only to the tools the Founding Fathers had available. They don't seem to get that free speech applies to television and YouTube, despite there being no evidence that the Founding Fathers ever envisioned such a technology.
Is it willful ignorance, blatant stupidity, or the simple hope that everyone else is a moron and the argument will somehow land?
I don't know, and I don't care.
What I care about is putting an end to this particular flavor of asinine argument once and for all. The fact that this question was asked of a personality who writes for the internet, likely sent via email, and typed on a cell phone or computer without even a whiff of the irony involved is something that should be universally mocked, derided, and the person who made the argument should slink back under the rock they came out from.
There's a reason I no longer believe that there are no stupid questions.
There most definitely are, and Rubin just had to answer one.
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