The idea of originalism isn’t overly complicated, though it’s often imperfectly applied. Basically, the idea is that the Constitution isn’t to be twisted to mean what you want it to mean by the standards of the day, but by the way the Framers would have understood it.
The idea that the Founders wanted terms to be malleable is insane, to say the least, but those who adhere to the “living Constitution” idea seem to think that it doesn’t matter because they somehow couldn’t foresee our challenges.
I’ll grant that they probably never saw some of the debates that currently rage in our nation–there was no nation of Israel at the time, much less a Palestine, for example–there are a couple of things we know they intended. That includes the right to keep and bear arms as an individual right.
But I recently came across a piece that seems to have a hard time understanding what originalism actually is and how it’s applied.
Duarte appealed on the grounds that the “felon in possession” statute was unconstitutional as applied to him, a nonviolent offender who had already served his time. And in 2022, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court dramatically curbed the government’s ability to pass gun safety laws, declaring laws presumptively unconstitutional unless they are, in a judge’s estimation, “consistent with the Nation’s historical tradition of firearm regulation.” On Thursday, the Ninth Circuit Court of Appeals agreed, ruling 2-1 to vacate Duarte’s conviction. Carlos Bea, a George W. Bush appointee, and Lawrence VanDyke, a Trump appointee, outvoted Bush appointee Milan Smith, Jr.
There is some sense in sparing Duarte from spending four years of his life in prison for having a gun while also having a record of nonviolent offenses. Still, as Smith writes in dissent, the majority treats Bruen’s decision about a New York gun licensing law as “an invitation to uproot a longstanding prohibition on the possession of firearms by felons.” Every extension of Bruen’s reasoning will make it that much harder for lawmakers to try and limit gun violence in a country besieged by it. Usually, the conservative legal movement invokes the originalist demand of “history and tradition” in order to curtail, say, reproductive freedom. But in Second Amendment cases, originalism becomes a one-way ratchet ever expanding freedom of access to guns. (One possible explanation for this curiously differential treatment: the Republican Party cares about one of these freedoms and not the other.)
The issue here is that originalism isn’t somehow meant to only apply when convenient. The Supreme Court’s decision on Dodd kicked the issue of abortion back to the states. Under the Constitution, those powers not explicitly given to the federal government go to the state or the people respectively, as noted in the Tenth Amendment.
As no one will be able to find any mention of “reproductive freedom” in the Constitution anywhere, this was the correct notion. Note that this is not me making any value judgment on the issue, either. I’m simply pointing out that the Constitution is devoid of any mention of such a right and, under the framework of our founding document, it’s not an issue the federal government has any authority over.
But this idea that it’s somehow only applied intermittently and when convenient in protecting rights may or may not be accurate, depending on who you talk to, but originalism is about protecting the integrity of the Constitution itself.
When one contorts the Constitution to protect types of “freedom” that aren’t mentioned in the least and aren’t easily contextualized under existing rights codified in the Bill of Rights, you open the door on the government to declare things rights that were never meant to be.
Imagine a right to never be offended. I know a lot of people would love that, but think about how quickly offense can be given unintentionally. Punishment could well descend upon those who meant nothing by what they believed to be innocent comments. How is that right? How is that not a violation of one’s freedom of speech?
The author is lamenting that the Ninth Circuit upheld the right to keep and bear arms for non-violent felons under the guise of originalism, but what it really boils down to is that originalism is an argument that undermines everything she would like to see exist legislatively.
Yet originalism is the very thing that protects all freedoms, including the right to criticize the Ninth Circuit for making a decision she doesn’t agree with. Without originalism currently leading the thought processes of the Supreme Court, Congress could well enact a law that internet journalists don’t count as members of the press and therefore aren’t afforded the same freedoms under the First Amendment and see the Courts uphold it.
Maybe it’s me, but criticizing outcomes under originalism because you personally don’t like the results is incredibly shortsighted.
