The Originalist Solution to the 2nd Amendment

As ridiculous as it is to create and judge 21st century laws based upon whether or not our 18th century Founding Fathers were clairvoyant enough to included specific solutions for the social, technological, and political challenges we face today in the founding documents that they created 250 years ago, Constitutional Originalism is still ascendent on the Supreme Court.

And while that imperils a whole range of freedoms Americans have fought to secure and rightly come to expect, it should also serve to definitively end the modern controversy about the 2nd Amendment while securing a much safer and more secure everyday for all Americans.

As explained by history professor J.M. Opal in a June 22, 2022 Op-Ed in the Los Angeles Times, “‘To bear arms’ didn’t always mean what today’s pro-gun crowd thinks”:

“In the founders’ era, to ‘keep’ meant to own and possess something inside one’s home, while ‘bear arms’ referred specifically to shouldering a musket or rifle in an army or militia … Nowhere does the amendment declare or suggest a right to ‘go armed,’ the term used in that era for carrying a weapon such as a pistol or dagger, either openly or in secret.”

Inevitable and undeniable evolution of word meanings aside, though, an Originalist reading of the 2nd Amendment (read: what the founders actually meant and intended) cannot be separated from the specific arms that they were referring to in their day.

Regarding firearms in particular – as they are the “arms” that engender the endless debate and gnashing of teeth that we are so mired in today – the founders were, by historical necessity, referring only to very narrow and specific kinds of weapons: muskets and flintlock pistols.

Of course, it isn’t reasonable to restrict public-accessible firearms in the 21st century to only 18th century muskets and flintlock pistols. But if one is an adherent to the idea of Constitutional Originalism, it is not only reasonable, but mandated by one’s deeply held principles, to restrict firearms accessibility to the closest modern equivalents of the capabilities of the firearms that the founders were specifically talking about when they originally wrote the Constitution.  

Muskets and flintlock pistols could only hold and fire one round at a time. They had to be manually reloaded each time they fired. They weren’t – and couldn’t be modified to be — even remotely semi-automatic, much less fully automatic. They didn’t take magazines of ammunition of any size, much less ones with 9, 15, or 30 rounds in them. And they were far less powerful and accurate than even low-powered modern firearms.

Thus, by any intellectually honest or principled Originalist reading, the 2nd Amendment of the Constitution could only be argued to protect a few classes of modern firearms: bolt-action rifles, pump-action or break-action shotguns, and single-action revolver pistols.

All of those weapons fire only one round or shell per trigger pull and must be manually manipulated to load subsequent shots, making them the closest reasonable modern analogs to the firearms the founders were specifically writing about.

What’s more, the ammunition capacity of each of those firearms is as close to one as is reasonably possible in modern firearms, though they already strain an Originalist reading to the breaking point. As such, no expansion of ammunition capacity can honestly be argued for beyond the standard 3-5 round magazine for bolt-action rifles, 1-5 shells for shotguns, and 6 rounds for revolvers.

The wonderful thing about this particular Originalist reading of the Constitution is that both sides of the gun-rights debate can wholeheartedly agree on it.

Those seeking increased gun restrictions would be ecstatic to implement these very logical, sensible, and as-historically-accurate-as-possible Originalist rules around firearms.

It requires only the consistent principles and intellectual and philosophical honesty of the other side of the debate to end the acrimony, secure the rights the founders intended, and ensure a far safer America than the one we have today.

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