On Saturday Oct. 17, 2020, Jonah Goldberg published an article in the Athens Banner Herald titled, Barrett’s “Originalist” Stance makes Sense.
Goldberg quotes Judge Amy Coney Barrett as saying Constitutional originalists all “share the basic idea that the meaning of the Constitution can be found in the Constitution.”
Barrett goes on to explain “So in English that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it has the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up tome to update it or infuse my own policy views into it.”
Those who hold this political and legal philosophy are also referred to as “strict constructionists.” Advocates say that Justices and judges should interpret the Constitution and Amendments only as intended by the founders and those who amended it.
Those who advocate a “living” constitution point out correctly that the authors of the Constitution were not of one mind. Also, that the Constitution, while precedent setting in many ways, was ultimately a flawed document that many of the founders accepted reluctantly. and which compromised the fledgling nations ideals and aspirations. The Constitution denied freedoms to many citizens who had struggled mightily to achieve those freedoms. Many originalists look to deny some citizens their rights today, using the excuse, you do not belong to a “protected class” or you do not have “standing.” In fact, all American citizens deserve the same rights as their fellow citizens by right of birth in this country.
But despite what they self righteously say, originalists do not hold the Constitution as a “sacred” document that must be interpreted as written by the Founders Instead they pick and choose whichever interpretations that suits their prejudices and selfish preferences, which not surprisingly, most often mimics the prejudices and selfish preferences of some of the the Founders.
Originalists ignore facts and realities that are prejudicial to their prejudices, and they create principles out of whole cloth which they use to justify their efforts to deny freedoms to their fellow Americans.Thus they strive to maintain their and the Founders preferred ideal of a government which is, by and for white male property owners. Basically, white male privilege.
A perfect example of this mindset is the current conservative interpretation of the Second Amendment, which reads,
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The meaning of this amendment should be perfectly clear to any honest legal scholar or citizen. The sole purpose of this amendment is to protect the existence of “well regulated militias.” As well as to codify the right of a citizen to belong to a “well regulated Militia.”
The phrase “being necessary to the security of a free State” emphasizes that the purpose of the Amendment is to ensure local communities can organize militias for the defense of those communities. And only that.
The words “to bear arms” reinforces the meaning. Only soldiers “bear arms.” Not civilians.
If the Founders intended for this amendment to insure citizens the right to “own guns,” they would have used those precise words. But the Founders didn’t.
The deliberate way the amendment is structured into several complimentary clauses provides the clear meaning of the Founder’s intention and purpose.
The meaning and purpose of the Second Amendment is to guarantee a citizen’s right to belong to a “well organized militia” and to“bear arms” in the defense of that citizen’s home and hearth.
To assert that the Second Amendment gives citizens the right to “own guns” is constitutional law malpractice and renders the Amendment’s meaning ridiculous on it’s face.
In fact, most of the citizens who were members of well regulated militias did not keep their weapons of war at their homes, instead most weapons and munitions were kept in their local armories.
Despite the machinations of radically conservative originalists, the Constitution as written and amended does not provide any right for a citizen to own a gun.
Of course, nothing in the Constitution prevents a citizen from owning a gun. Basically, the Founders considered gun ownership a local or state matter.
To repeat, there is no Second Amendment right to own a gun. Only the right for a citizen to “bear arms” as a member in good standing of a well regulated militia. The modern equivalent of the “well regulated militia” is the well regulated National Guard units that exist in the various states.
Many of the Founders, and many Americans, had a profound mistrust of standing armies. Yet, some form of self defense was obviously needed.Therefore, city, county and state governments established, sponsored, regulated and supported official local militias.
The minute men who battled the British at Lexington and Concord were not a gaggle of rag tag local farmers and shop keepers, but a well regulated militia that had trained and paraded on the village green under competent elected leaders.
The purpose of the British raid on Lexington and Concord was to confiscate the weapons of war that were stored in the Armories of those Militias in those communities.
After the Revolutionary War and as the nation expanded, well regulated militias were founded in most every substantial town. In the lead up to the Civil War, local militias were enhanced and rearmed, especially in the South.
Secretary of War Jefferson Davis was criticized for sending modern arms and munitions to many local militias in the Southern states prior to the Civil War, which he did. Militias nationwide formed the basis of both the Union and Confederate armies as well as the armies that states like Georgia raised for home defense. National Guard units formed the basis of the American army in World War One.
To re-quote Judge Barrett, the meaning of this particular amendment to the constitution “can be found in the Constitution.” Furthermore, she and other judges and Justices should “understand it (the text) to have the meaning that it had at the time people ratified it. So, that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
Overtime radical conservative originalists have tortured the plain meaning of the text and amendments of the Constitution to justify their selfish agenda which includes discrimination against minorities and other sins.
They are faithfully following in the footsteps of many of the
Founders, supporting white male privilege and. empowering their corporate overlords.
Despite what they claim, originalists are guilty of interpreting the Constitution according to their ideals, prejudices, aspirations, preferences, beliefs, suppositions, politics and philosophies just like everyone else. But their Constitutional philosophy is not a“living” one but a “dying” one, with many American citizen’s rights and freedoms being eroded, limited and smothered out of existence.
The originalist misinterpretation of the Second Amendment is just one example of the reality that this radically conservative philosophy is a clear and present danger to the entire Constitution and any or all American freedoms. Originalism is less a legal philosophy than a proud display of mass hypocrisy.
As for the Second Amendment controversy, there are several remedies for citizens who wish to promote Federal protection of gun ownership. Proponents could amend the Second Amendment, or propose a new Constitutional amendment and encourage the states to ratify it. Individual states also could amend their state constitutions if those documents do not already have such protections.
Jim McMeans
Danielsville,GA