Ask Jordan: How do originalists justify modern weapons under the Second Amendment?

“Applying the late Justice Antonin Scalia’s originalist and textualist test for interpreting the Second Amendment, it seems to me that it’s the right to ‘keep and bear’ single-shot muzzle-loaders that ‘shall not be infringed.’ How does it in any way prohibit the states or the federal government from regulating modern firearms?” – Michael

Hi Michael,

Scalia saw no problem applying the Second Amendment to modern firearms. Writing for a 5-4 majority in 2008’s District of Columbia v. Heller, he said it was almost “frivolous” to claim that “only those arms in existence in the 18th century are protected by the Second Amendment.”

He said the court doesn’t interpret constitutional rights that way. For example, he cited the First Amendment’s protection of modern forms of communication and the Fourth Amendment’s application to modern searches.

Against that backdrop, Scalia said the Second Amendment covers “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

The late Justice John Paul Stevens, who dissented in Heller, called it the worst ruling in his 35-year tenure. Before his death in 2019, Stevens said the ruling’s “twin failure” of its “misreading of the intended meaning of the Second Amendment” and “failure to respect settled precedent” marked “the worst self-inflicted wound in the Court’s history.”

The court has since further expanded gun rights. The 2022 Bruen case said gun laws can’t stand unless they’re consistent with the country’s “historical tradition of firearm regulation.” The court has applied Bruen to strike down more firearm restrictions, most recently in the Hawaii case of Wolford v. Lopez.

To be sure, Scalia didn’t claim that gun rights are limitless. Those limits are still being tested as advocates continue to press the justices, including for the right to possess AR-15s and similar semiautomatic rifles. The court said this week that it will decide next term whether that right exists.

We should know by this time next year whether the court will announce a right to possess what Illinois officials called “the weapon of choice for criminals and terrorists set on quickly massacring innocents.”

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