The Originalists Among Us

by Bernard McCormick Wednesday, March 02, 2016 No Comment(s)

The death of Supreme Court Justice Antonin Scalia has given us a new word. "Originalist" has been frequently used to describe his concept of the constitution. Oddly enough, originalist means relating to the original, or in this case the intent of the founders who originally worded the constitution. Thus, Scalia interpreted the second amendment's "right to bear arms" as anti-gun control. And the first amendment "right of free speech" to extend the right of major companies to speak their opinions by buying legislators with massive campaign contributions. Many consider such as legal bribes. Now, if that is not an original interpretation of the founders’ original thinking, we don’t know what is.

Justice Scalia, no nitpicker, did not think it made any difference if the founding fathers defined "arms" in terms of their time, when lances and smooth bore muskets were about the “baddest” arms one could bear, and when none could envision bad guys bearing automatic weapons against police. In other words, he interpreted the constitution to have applications none of the founders could possibly have in mind—exactly the criticism he would make of judges who viewed the constitution as a general outline subject to interpretation with inevitable social changes over two centuries.

This, of course, is not a criticism of Scalia or originalism. We are also an originalist, and we think the founding fathers would never have approved a right to bear arms without including a right to use them. They certainly would have no objection to people shooting other people, especially if they did not like them. In fact, nobody got very upset when Aaron Burr killed Alexander Hamilton in a duel, when the ink on the constitution was barely dry. History notes Burr mostly as a bad guy, and we know the only way to stop a bad guy with a gun is a good guy with a gun. Oops, Hamilton did have a gun, but so what? Burr caught some temporary heat for that one, but died in bed 32 years later. Andrew Jackson also was known to engage in many duels, although he is officially credited with only one kill. And he was elected president.

We would not, of course, recommend that you shoot anybody, only people who threatened you, and certainly not more than one or two per day. You know, Stand Your Ground law, a great Florida tradition, permits criminals to get away with murder, as long as they say they were threatened. We personally would like to be able to shoot people who make vulgar gestures in our direction when driving, or fail to react promptly when the light turns because they are arguing with somebody on a cell phone. And, especially, people who do not clean up after their dogs.

Some people may regard these as extreme interpretations of the second amendment, but they would not be extreme if the National Rifle Association would give us the kind of support they do when showering public officials with campaign contributions (which are legal) or using the money to defeat those they don’t like. Those contributions, along with those from many other organizations, have effectively changed the meaning of the word bribe, which is, thanks to the Supreme Court, no longer a pejorative. And it’s certainly not libelous.

The NRA, however, does not bribe journalists, which is why the organization gets bad press from almost every responsible media. The media has reported that the NRA, while ostensibly a group of law-abiding gun owners, is actually heavily funded by gun manufacturers, who don’t seem to care how many kids get killed in drive-by shootings as long as they sell guns. In fact, they may welcome mass shootings, for they seem to spike gun sales. That perception could change if the NRA sent money to media figures, not to bribe us, of course, but to assure freedom of the press.

Justice Scalia, God rest him, would be on our side.

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