Why "Originalism" Doesn't Just Protect Your Right To Own A Musket

[Charlie T Waite]

There’s been no shortage of laughable attempts to criticize Judge Amy Coney Barrett over the past couple of days, but one of the dumbest takes that I’ve run across (besides the odd fixation on Barrett’s ladybits) is the idea that because Barrett’s judicial philosophy is one that takes the original meaning of the Constitution as the lodestar in all decisions, this somehow means that the Second Amendment should only protect the right to own a musket.

.@SenatorDurbin: “When that Second Amendment was written…we were talking about the likelihood that a person could purchase a muzzle-loading musket.

We are now talking about virtual military weapons that can kill hundreds of innocent people.” pic.twitter.com/QLBeH2pKbU

— Washington Examiner (@dcexaminer) October 13, 2020

“Maybe an originalist pins all their thinking to that musket, but I’ve got to bring it to the 21st Century and the 21st Century has people being killed on the streets of Chicago because of the proliferation of deadly firearms,” said Dick Durbin during today’s confirmation hearing.

Under Dick Durbin’s interpretation of originalism, the First Amendment would only protect newspapers printed on a press, along with whatever thoughts you might be able to scribble down with a quill pen or be able to speak out loud. It wouldn’t apply to messages sent by telegraph, telephone, radio, television, cell phones, or the Internet.

I’ve got news for Dick Durbin; that’s not “originalism.” It’s just plain dumb.

Originalism does indeed hold that the Constitution should be applied as written, and in the case of the Second Amendment, the right of the people to keep and bear arms is what’s protected, not the right to keep and bear muskets.

Here’s what the Heller opinion offered by Antonin Scalia says about the word “arms” and what it encompasses.

The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

After defining the scope of the word, Scalia then directly addresses the idea that abiding by the text of the Constitution requires limiting the Second Amendment to muskets and the odd Pennsylvania Long Rifle.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Prima facie; accepted as correct until proven otherwise. Scalia went on to say that arms that are not in common use may not be protected by the Second Amendment, but that all arms that are in common use do have that protection. The federal courts that have upheld bans on so-called assault weapons have largely done so by claiming that the most commonly sold centerfire rifles in the United States are actually “dangerous and unusual weapons” that aren’t in common use and fall outside the scope of the Second Amendment right.

Dick Durbin has applauded those decisions even though they ignore the Constitution and fundamentally misconstrue Scalia’s opinion in Heller. What Durbin ever fails to acknowledge is that the Second Amendment is itself an amendment to the Constitution, and if he and others want to legally limit the right to keep and bear arms (which as of now shall not be infringed), the proper way to do it is by passing an amendment of their own devising. Would that be harder than simply ignoring the Constitution? Yes, absolutely, which is why Durbin doesn’t want to admit that it’s an option. It’s far easier for politicians to simply claim the Constitution is infinitely malleable without the need to formally change what it says.

As to Durbin’s claim that violent crime wasn’t a concern at the time of the Founding because citizens only possessed muskets, history tells a different story. While accurately gauging homicide rates in the 18th century is an imprecise science, the best estimates are that the murder rate was about 28 per 100,000 in 1790, the year before the Bill of Rights was ratified and the right to keep and bear arms was enshrined in the Constitution.

In 2019 the U.S. homicide rate was 5 per 100,000 people, according to the FBI. Even as firearms technology progressed beyond single shot rifles and dueling pistols to revolvers, repeating rifles, and automatic and semi-automatic firearms, our nation’s crime rate has generally declined. Crime today is lower than what it was in 1900, but higher than what it was in 1950. Since the early 1990s crime has declined dramatically around the country, though 2020 has seen a number of cities with a sharp increase in the number of shootings and killings.

Still, our homicide rate is nowhere near what it was even 25 years ago, and Dick Durbin is not only ignoring the Constitution, but ignoring effective policing strategies when he says that the way to reduce violent crime is to reduce the number of legally owned firearms, or to try to turn back the clock to 1791 and ban the sale of AR-15s and other modern sporting rifles.

The Second Amendment is a real right, and judicial originalism simply recognizes the right for what it is. If Dick Durbin truly believes that we can’t be a safer country without making it a crime to own some of the most commonly possessed arms in the country, he should be fighting to change the Constitution instead of demanding that the courts simply ignore it.

Cam Edwards has covered the 2nd Amendment for more than 15 years as a broadcast and online journalist, as well as the co-author of "Heavy Lifting: Grow Up, Get a Job, Start a Family, and Other Manly Advice" with Jim Geraghty. He lives outside of Farmville, Virginia with his family.

More posts from Cam Edwards

https://bearingarms.com/cam-e/2020/10/13/originalism-musket/