Sandy Hook. Uvalde. Parkland and more.
After another mass shooting in the United States, we get the usual calls for gun control on one side, and their opponents who consider any common sense restrictions a threat to the Second Amendment. The heart of this debate is who determined that the founding fathers are God and leads to originalism vs living constitution. These were mere mortals, likely no better or worse than the politicians we have today, ok, probably slightly better.
Founding Fathers
Some on the right would like to hold them in such high regard and so omniscient that they would know what advancements would occur 250 years later. But many of them could barely even envision slavery being wrong and eventually abolished, much less what society would be like 100, 200, or 300 years from when they lived. They created a constitution that protected slavery and directly led to the US Civil War, the bloodiest war in American history.
These were very fallible men. The founding fathers didn’t go up to the mountaintop to bring down the Constitution, they were flawed Men who wrote a flawed but revolutionary document. This does not mean the ideas are set in stone eternally. If the founding fathers couldn’t see the ills of slavery and the future Civil War, what makes us think they could see the high-powered weapons of the future?
Assault weapons should be banned. Yes, I know every gun expert will say but but but they’re not technically assault weapons. This technicality is not especially concerning since the 2nd amendment says the right to bear arms but does not include the type of arms and certainly not a style that would not exist for over 150 years. Our founding fathers were intelligent but likely could not envision anything much past the musket of their lifetime. If they could look into the future, we may have had a completely different 2nd Amendment of the Constitution. It is precisely this inability to see the future that makes the “living constitution” a much more persuasive argument than originalism.
Part of the reason for the 2nd amendment was to fight back against the government if it became too tyrannical. During the founding fathers’ time, that may have been possible, but in the current day, with tanks, APCs, heavy bombers, and nuclear weapons, no civilian force would stand a chance against the United States military. Hence, the main reasoning for the 2nd amendment is null and void.
Originalism vs Living Constitution
Since we have established the founding fathers’ inability to see the future and that the constitution should be viewed through a modern lens in that it is a living document, it makes sense to use common sense when interpreting the 2nd amendment (or any portion for that matter). The objective of this article is not to be a treatise on exactly what guns should be allowed or not allowed. The goal is to argue that we should interpret this document to fit modern times.
An example of this regarding guns could be to question whether a particular weapon serves any purpose that cannot be served by a lesser caliber weapon. Take the AR-15 for example, what purpose does it serve that cannot be done by a .22 rifle, shotgun, or handgun? You wouldn’t hunt with an AR-15. Home protection? You’d be better off with a shotgun. Is it fun to shoot? I suppose that could be one argument, but there could be a compromise where a range can keep them on hand for gun enthusiasts to rent out and use on the range.
Some may argue that the civilian AR-15 doesn’t do anything that a shotgun or smaller rifle can’t do since it’s not fully automatic. This neglects the fact that the civilian AR-15 still accepts high-capacity magazines (often 30+ rounds) and can be fired rapidly and repeatedly with minimal recoil. This allows them to sustain fire with the rounds traveling at an extremely high velocity, thus making any wounds more devastating.
All of this makes mass shootings faster, deadlier, and harder to stop.
If we interpret the right to bear arms as allowing no restrictions, then why can we not allow a fully automatic AR-15 or even a more lethal style of weapons? So if you are a strict originalist, then we are already in violation of your view on the 2nd amendment since it technically lays down no barriers to gun ownership.
This is why in the battle of originalism vs living constitution, the living constitution is the only idea that makes sense. If you support any ban on any style of gun, then you already believe in the living constitution, whether you’d like to admit it or not. The founding fathers were flawed, noble, intelligent, polarizing, and heroic. It is exactly this contrasting picture that makes it difficult to determine their true intent behind the meaning of the Constitution. While many of their ideas can be thoroughly debated in the halls of academia with minimal outside repercussions, the 2nd Amendment is an idea that truly is… life and death.
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