THOUGHTS ON ORIGINALISM PART 2

YESTERDAY WE DEFINED “ORIGINALISM” and began exploring its various interpretations of our Constitution’s Second Amendment’s “right to bear Arms.” Today in Part 2, New York University’s Professor Marcia Pally exposes the idiocy of this in a satirical essay.

A Position with Which I Agree. Professor Marcia Pally wrote her brilliant essay “The (Really) Originalist Position on Guns—and Your Fife and Drum, Too,” in Counterpoint Navigating Knowledge, September 18, 2019. She teaches at New York University and is a regular guest at the Theology Faculty of Humboldt University-Berlin.

Our National Carnage. Professor Pally begins her essay somberly by citing ten mass attacks between Odessa, Texas: 31 Aug. 2019 and Parkland, Florida: 14 February 2018. These were perpetrated by those apparently having Second Amendment rights to their carnage. And, of course, I could bring accounts of this carnage up to date with so many lamentably more. 

In the meantime, originalists of the Supreme Court have pondered legalistic points, because that’s what SCOTUS does, after all, and recently overturned the ban on devices designed to enhance greatly a rifle’s rate of fire. 

They can quibble about a bump stock not really being a machine gun in any sense of our Founding Fathers. Or they can question just which branch of government should decide this point. In either case, crazed mass shooters now have bump stocks as an option… again.

Oh, and so do guns hobbyists too. 

A Satire on It All. Professor Pally builds her originalist argument, “To begin, we must identify the truly original position on guns. In a word, you can buy and own any gun available in 1789, the year the Constitution became my country’s guiding light.”

Image from Domenick D’Andrea-Wikipedia Commons-Public Domain from the Pally essay.

Ah, what a nuanced hobby: vintage guns. Sorta like 1935 Bugattis, eh? Or maybe not. 

But There are Guns and Guns. “Now,” writes Pally, “some say they want guns with greater accuracy than those eighteenth-century types, which shot so wildly they were practically useless and known merely as ‘good handles for bayonets.’ But that’s unconscionable, unpatriotic disrespect for the weapons the Founding Fathers knew and therefore intended in the Second Amendment.”

And, let’s all concur that the Founding Fathers’ views were sacrosanct in all things (er… except for slavery).

British Pattern 1769 Short Land Musket, c. 1769–1777. A single-shot weapon. This and following images from The American Revolution Institute of The Society of the Cincinnati.

A Matter of Intent. Pally recounts, “Real originalists really follow the Founders’ intent, as did the late Justice Antonin Scalia, who wrote the decision in the 2008 Heller court case, which set out current gun law. He said Americans could own pistols for the purpose of self-protection in their homes.”

But wait, wasn’t this all about “state militias”?

Pally observes, “This was not what the Second Amendment said about arming citizens in state militia. But I’m sure Scalia intended that his decision follow the original intent.”

You Wanna Reload? “Others,” Pally continues with her satire, “say they want a rifle that, unlike eighteenth-century weapons, doesn’t have to be re-loaded after each shot by adding gunpowder, ramming the bullet down the shaft to secure it in place, shoving cartridge paper in after the bullet to keep the darn thing from rolling out, and re-attaching the ramrod before shooting a single bullet. But this is just lazy, wishy-washy wishful thinking by those lacking the spine necessary to stick to original intent.”

The Pennsylvania Long Rifle, c. 1780–1790. Another single-shot weapon. Don’t forget your powder, ramrod, bullet, and cartridge paper.

Back to the vintage gun hobbyist faction: It’s sounding more like a vintage car and less like John Wayne.

An Historical Intent. “But in fact,” Pally recounts, “what the original intenders intended was to have citizens help the federal government put down rebellions by those who resisted higher taxes.” She then cites the Militia Acts of 1792 that “dragooned every ‘free able-bodied white male citizen’ between the ages of eighteen and forty-five into a local militia and required that he outfit himself ‘with a musket, bayonet, and belt, two spare flints, a box able to contain not less than twenty-four suitable cartridges, and a knapsack.’ You could get out of your obligation to serve in militia if you worked in a critical job, such as stagecoach driver, ferryboatman, or (revealing Congress’s self-estimation) Congressional representative.”

“The intention of this second act,” Pally notes, “was to suppress the Whiskey Rebellion (1791–1794) against higher taxes.”

A Concluding Word on Originalism. What about today’s scammers of tax laws? Pally concludes, “America will hunt down these nefarious tax evaders by arming every ‘free able-bodied white male citizen’ with the guns intended in 1789. You can have a fife and drum, too.” 

Thanks, Professor Pally, for putting SCOTUS Originalists in perspective. ds 

© Dennis Simanaitis, SimanaitisSays.com, 2024