If you’re going to criticize constitutional originalism, please at least know what you’re talking about first.
For example, self-professed feminist blogger Jill Filipovic claimed Tuesday morning that, “handguns didn’t exist in the 18th century.”
Her very false claim came as part of a smaller point in an article attacking Supreme Court nominee Neil Gorsuch over his claim he’s an “originalist.” The article, which was published by Cosmopolitan, is titled, “9 Reasons Constitutional Originalism Is Bullsh*t.”
The subhead reads, “Donald Trump’s Supreme Court pick Neil Gorsuch describes himself as an originalist. But no one is actually an originalist.”
Her first example of why originalism is bullshit is that “no one is really an originalist.”
Into the rabbit hole [emphasis added]:
No one is really an originalist. No, not even Scalia, who decided plenty of cases according to his own whims and opinions. Take the District of Columbia v. Heller case, about a D.C. law restricting handgun ownership. Until recently, judges generally interpreted the Second Amendment according to the same narrow interpretation many historians say the founders held, as evidenced by the text itself: that the Second Amendment doesn’t give individuals the right to bear arms, but rather provides for the right of well-regulated militia to exist.
There’s also significant historical evidence that the framers didn’t intend to protect individual rights to bear arms — when the Constitution was being created, several states proposed language that would have done just that, and they were rejected by the framers in favor of the militia language of the Second Amendment. Nor, of course, did handguns exist in the 18th century.
Let’s back that train up for a second.
Mankind has been using hand-held projectile weapons that dispense deadly balls of lead since about the 1300s. One of the framers of the Constitution, Alexander Hamilton, was even killed in a dual involving – wait for it – handguns (or “pistols,” if you prefer). You may have heard about it. It was in a musical and everything.
A handgun is defined simply as a gun that is used by one hand, like a dueling pistol or a revolver.
Cosmopolitan’s editors updated the story Tuesday afternoon with a note claiming Filipovic really meant to say that handguns like the ones at the heart of the Heller case were not around during the 18th century. It was not the author’s original intent to suggest handguns didn’t exist when the Constitution was written, they said.
Back to her blog post:
But the “originalists” on the Supreme Court nevertheless interpreted the Second Amendment as protecting an individual right to handgun ownership, flying in the face of the text itself and the founders’ intentions.
It goes on like that for quite a while. Honestly, some people in media make it too easy for media critics.
