As usual, Gillianren's contributions are right on point.
And of course they definitely ignore all eighteenth-century definitions of "militia". to maintain that the weapons that didn't exist at the time are perfectly okay in the home of any rando who wants them.
The individualist faction of the American gun cult essentially ignores the first clause of the amendment altogether. This is definitely the position of the NRA. They might just as well argue that every individual American has the absolute right to own any kind of firearm that exists.
The technological difference between today's assault weapons and even the most advanced and effective weapons of 1790 -- say, the Kentucky long rifle -- should not be overlooked. It takes a fair amount of skill to be able to correctly load, fire, clean, and maintain a muzzle-loading long rifle. The reason one was part of a "well-regulated militia" is so that a gun owner would be given the means to maintain proficiency. In contrast, with a few exceptions, a modern handgun is a point-and-click interface. In 1790, the ability to operate a state-of-the-art firearm
at all usually coincided with membership in a group governed by a sense of discipline.
Because what they're missing is that "militia" had a specific meaning at the time, the US didn't have a standing army at the time, and that nobody intended what they're currently insisting is the meaning of the Amendment.
The United States especially eschewed a national standing army precisely so that a despot couldn't use it for precisely what President Donald J. Trump is using federal troops and federal law enforcement for: to defy state and local authority by means of overwhelming force. A standing navy was deemed necessary simply for logistical reasons. But if the need suddenly arose for national defense, the U.S. was expected to compose an army
ad hoc from the state militias. Naturally the ability to do that effectively is predicated on a certain kind of organization and training that occurs on an ongoing basis, which is the original footing of the Second Amendment.
More importantly, today's so-called militias have nothing to do with what the Framers understood, and how Congress has historically regulated the concept. What they understood by "militia" in the day is more properly approximated in modern times by the National Guard. That's a codified term for modern military units organized in each state, with officers appointed by state governors out of those ranks. The Framers certainly did not mean reclusive bands of heavily-armed randos, garbed in Cabela's hunting camouflage, beholden to no authority but themselves, riding around in their own trucks running campaign buses off the road. Frankly, those are more likely to be the "insurrections" a well-regulated militia would be called up to confront.
"Well-regulated," as Alexander Hamilton understood the term, meant it would remain under the authority of the state government, and its officers would derive their authority from a commission or warrant from the state governor. This concept ties into the Second Amendment by means of a hierarchy envisioned by the Framers that would extend from one extreme of relatively professional "regulars" -- a small number -- down to a militia force of last resort composed, if needed, from all able-bodied young men of the territory.
Hamilton recognized that an effective militia needed to train often enough to be proficient. Hence he envisioned a small corps of semi-professional soldiers in each state. Then he envisioned the entire male cohort of a state being available to fight in a larger conflict using their own arms and according to skill and discipline built through a less formal, less frequent, and less rigorous training exercise conducted by state-commissioned officers. Such a citizen militia would be "well regulated" in the sense of coming under the authority of professional officers commissioned by state government authority and more beholden to military decorum than to personal fealty. Hamilton is clear in his desire that such force be used to protect the state government's concept of law and order, not to wield military force according to a private interpretation of the law.
The
Second American Revolution War of 1812 proved the folly of trying to stand as a national power without a largely professional army. State militias proved to be too difficult to organize, train, and deploy as an army to defend the entire nation. The original justification of the Second Amendment mostly disappeared a mere 20 years after being proposed. And the standardization and specialization of modern military equipment for good reasons has all but precluded the need for potential militiamen to keep and provide their own weapons if called up. (However, this is how originalists get around the assault-rifle issue; the Framers "clearly" intended the Second Amendment to refer to weapons that could be used to fight a war, however characterized from time to time.)
Which is another major problem with "originalism." It doesn't come with a real grounding in history. If you can get inside the head of James Monroe or similar, the first thing you have to do in order to do it is really learn about not Monroe himself necessarily but the world in which Monroe lived. ... And originalists aren't doing any of that, because they somehow believe that only the words that actually made it into the Constitution matter to define what the words in the Constitution mean.
Indeed, the textualists are criticized for the arrogance of presuming what words mean today to the people who hear them today is what should dictate the contour of laws that people today must obey. They interpret the Fourth Amendment's "secure in their papers" to mean, naturally, all that might today serve the purpose that "papers" did to people in the past: hard disks, USB thumb drives, etc. Originalists simply commit the converse arrogance of assuming they can understand a time and place largely removed from their experience well enough to justify binding others to that understanding. You mention the several fields of scholarship that would have to be mastered. But that still presumes the information is available to study. And it also presumes you apply no bias. As I'll discuss later, the last element is crucial.
The worst form of originalism is intentionalism, which presumes not just to be able to determine what words meant in 1790, but what certain men might have intended in 1790, whether they externalized those thoughts or not. Imagine having the final say in a capital case, but you base your decision on what you guess people originally intended who lived long ago in a different place. This is the worst case of government by men and not by laws. So originalists try very hard not to delve into original intent because of the inherent subjectivity. This is why they draw a bright line cutting off anything that didn't actually make it into the text of the Constitution. Everything else is, according to them, and improper attempt to infer intent.
And they assume all the Founding Fathers thought the Constitution meant the same thing, which they manifestly did not. Which, again, they'd know if they ever read the Founding Fathers' writings.
Originalism tries to escape all its hermeneutical failures by committing still more of them and sweeping them all under an increasingly lumpy rug. They don't consider extra-textual expressions of the Framers' intent, because that falls victim to speculation and to the academician's selection of sources.
They then don't limit the understanding of the text to that of the Framers, but rather expand it to that of the mythical ordinary, reasonably-educated person of the day. They think that by broadening the definition of original understanding they escape the need to define who was communicating, and to whom. This has always baffled me. I trust that a reasonable scholar can delve into the world of, say, James Madison and come to a reasonably defensible understanding of what Madison might have meant by not abridging the right to keep and bear arms. But I would not at all trust that Edward Rutledge, Thomas Jefferson, John Adams, or Alexander Hamilton necessarily understood the text of the Second Amendment in precisely the same way. So whose interpretation holds sway, and why?
The originalists then commit the same error as Bible literalists. They simply treat the text as having been brought down from Mount Sinai in a nimbus of glory that they dare not attempt to penetrate. They make the interpretational problems worse by expanding the number and type of people whose potential "understanding" needs to be considered as somehow relevant and binding.
The words of the Second Amendment came from Madison's pen. But they were debated by a number of people without necessarily arriving at a perfect consensus. Just because the words are Madison's doesn't mean his personal understanding matters more if its authority comes from broad ratification. Hamilton wrote
Federalist 29, which probably gives us the most direct picture of the original debate. But the originalists say we don't have to consider whether Madison, Hamilton, or the entire group of Framers had a cohesive idea of what the text means. We have to also consider what James Wilson might have understood, or Philip Schuyler, or Samual Seabury, or, for that matter, some guy in the pub, even though none of them had a hand in producing it. It's not what Madison understood, or the Framers understood, but the entire group of people that included the Framers. They simply lived at the time and spoke English, so somehow this should be the governing rule.
In a bizarre twist of rhetorical gymnastics, neither the original author of the Second Amendment nor its most eloquent (thought, it turns out, misguided) defender is specially relevant. While this agnosticism broadens the scholarship that can be brought to bear to discover historical meanings, it doesn't guarantee that the meaning will be any better refined (likely the opposite), nor that the breadth of scholarship will actually occur, nor that the meaning arrived at will be anything more than the statistical centroid of a linguistic shotgun blast.
The Fourteenth Amendment originally had a very narrow application. We know this because the guy who wrote it in the mid-1860s left us plenty of his own scholarship to help us understand it. Its original limited application is why the Mormons didn't bring it to bear in litigating polygamy before the Supreme Court. For decades it was widely understood that it had only a limited role in allowing Congress to compel states to honor the emancipation of Black slaves.
Now, of course, it's the HP Brown Sauce of constitutional litigation -- it gets applied to everything. And the originalists don't stand in its way. Practically nowhere in their treatment of Equal Protection do you read John Bingham's name or see a summary of important questions like federalism and incorporation of Constitutional rights against state government. Instead, an originalist today will try to argue that modern applications of the amendment to "sex" cannot be stretched to include "sexual orientation," as if either term were even on Bingham's horizon. What they consider "original" on that point came much later.
Remember it took until the Nineteenth Amendment for a basic right like voting to be upheld regardless of sex. Clearly sex descrimination was not
originally part of the Fourteenth Amendment. But so-called originalists have no problem with the non-Constitutional concept of a "protected class" arising "in the penumbra" of the Amendment. Why? Because one of the protected classes is religion, and originalists tend also to favor expansive defense of freedom of religion. It's the desired outcome, so they simply define the origin of Equal Protection at a point considerably along its life cycle and stake their position there.
Or the originalist will argue that the particular set of facts arising in one state should be governed by an original 18th-Century interpretation of one of the Bill of Rights, omitting that the very incorporation of those other rights against the states via the Fourteenth Amendment was not originally a foregone conclusion. Incorporation is what the originalist argument should be. The cases turned on incorporation, which is a Bingham doctrine, not on, say, whether garroting would have been allowable punishment in Madison's time. But it's harder to argue originalism when the origin in 1866 has so much more around it to prevent the waters from getting muddy enough to support the desired outcome. It's much more fun to pretend one's argument is the rhetorical successor of such luminaries as Madison and Hamilton.
The Second and Fourteenth Amendments are the best examples of why originalism fails as the best overall way to interpret a constitution. You can't posture it as something that proposes to take human bias and sentiment out of the equation, and then just ignore it when sentiment dictates.
Without question the textualist interpretation of the Fourteenth Amendment is the correct one, and the one that most closely fits classical American ideals. That it
cannot be supported in its present form by an originalist argument is a testament not to John Bingham's failure to elaborate his cause, but to the failure of originalism to decide outcomes that customers of the judiciary recognize as equitable and well-reasoned. (We could get into the whole Dead Hand of History argument, but this is already monumental.) The very existence of an ongoing, vital judiciary in the American system is evidence that the Framers probably did not expect originalism to be the order of the day going forward.
And how judiciaries work is really the final nail in the originalist coffin. You submit a set of facts to a court because the facts, as eventually established, identify an area of conflict between two laws or legal principles. The right of the people to bear arms will always stand in conflict with the right of the people to life and liberty. There are numerous laws in my state which, the Second Amendment notwithstanding, criminalize various ways in which firearms may be possessed, carried, and discharged. Any court in the United States will recognize these as reasonable attempts to balance the individual's right to own a firearm with his neighbors' right to be reasonably free from the risk of undeserved bodily harm.
Most court cases are unremarkable because they present no new difficulties in interpreting the scope of one law versus the other. The cases that present interesting new sets of fact are those that rise to the level of attention in high courts. I have in my collection of law books a tome -- a "reporter" -- dated 1702 of the various cases of the illustrious
Sr. Hen. Pollexfen, Kt., Late Lord Chief Justife of the Court of Common Pleas. Together with divers decrees in the High Court of Chancery. There's a surprising amount of material in there about sheep. But even in 1691 the jurisprudence is, "This law or custom says this, but this other law or custom says something different; which should hold?" And the decisions, in all their ligatured glory, draw a thin, often circuitous line among the facts and determine the boundary of the laws on facts of this ilk. This is the essence of Common Law, which in each case is the essence of precision.
Originalist arguments, based on a statistical, linguistic abstract of original meaning, can't be holding the stylus in a very steady hand. The jurist must choose one precise meaning out of several possibilities, and use that to draw his line. But if his method casts a broad net over murky waters filled with varied meanings, there is no guarantee his preferred meaning is any more the product of a dispassionate exercise than occurs in textualism. Moreover, all the originalist has to do is selectively present the historical reasons for his decision; rebutting an originalist then requires an affirmative argument and its own original research. Textualism may be inventive, but its inventions are on display for all to see, to agree with, and to rebut. If, in the end, all you can say is, "But that's not what people in Madison's time meant," then maybe you should consider that the hundreds of judges since Madison, collectively, with their eye on evolving times, can be considered a better judge than Madison (or the person channeling him) on what should be the case today.
Oh, by the way, the guy in 1691 got his sheep back.