{"id":105549,"date":"2026-10-27T06:00:42","date_gmt":"2026-10-27T10:00:42","guid":{"rendered":"https:\/\/quotulatiousness.ca\/blog\/?p=105549"},"modified":"2026-10-26T21:28:01","modified_gmt":"2026-10-27T01:28:01","slug":"originalism-doesnt-mean-freezing-rights-to-the-technology-of-the-founding-fathers","status":"publish","type":"post","link":"https:\/\/quotulatiousness.ca\/blog\/originalism-doesnt-mean-freezing-rights-to-the-technology-of-the-founding-fathers\/","title":{"rendered":"“Originalism” doesn’t mean freezing rights to the technology of the Founding Fathers"},"content":{"rendered":"

Have you ever been in a conversation with an intelligent-but-undereducated youngster? They’re likely to come up with highly original takes on issues, like “the US Bill of Rights only applies to the kind of guns they had at the time it was written<\/a>“:<\/p>\n

\"\"<\/a>

An 1829 printing press. The Founders clearly didn’t intend the freedom of the press to only apply to the printing technology of their era.
Woodcut by George Baxter, Public Domain.<\/p><\/div>\n

Abdul El-Sayed, Michigan’s Democratic U.S. Senate candidate, is the latest politician to suggest that the Second Amendment might shield the right to bear arms, but only those that existed at the time that it was adopted: namely, flintlock muskets. It’s a not-so-clever way of trimming back the Constitution’s protections. The argument’s flaws should be clear: the U.S. Supreme Court has already dismissed that line of reasoning, and a world in which the Bill of Rights applies only to 18th century technology would be one where freedom exists only in museum exhibits.<\/p>\n

“Everyone Should Have Equal Rights to a Musket”<\/strong><\/p>\n

“I’m gonna swear an oath to the Constitution. The Constitution has a Second Amendment in it, but the Second Amendment, just so we all are clear, even the most conservative folks, they hew to this idea called originalism, and originalism is the idea that you should interpret the Constitution in the context in which the Constitution was written”, El-Sayed insisted at a campaign rally. “When they promised the right to bear arms, they had muskets. So, yeah, everyone should have equal rights to a musket.”<\/p>\n

So clever. The Bill of Rights passed in the 1780s, so it must only apply to 1780s things. Except that the courts have thoroughly dismissed that ridiculous line of reasoning.<\/p>\n

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment”, Justice Antonin Scalia wrote for the majority in District of Columbia v. Heller (2008). “We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search … the Second Amendment extends, prima facie<\/em>, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”<\/p>\n

The Founders Lived in a Time of Rapid Innovation<\/strong><\/p>\n

The reason for this should be obvious. The founders were not unaware of progress. Many of them were scholars and innovators. They were certainly aware of (and enthusiastic about) continuing advancements in technology. During the then-recent revolution, American troops had faced off against a small unit of redcoats armed with Ferguson breech-loading rifles. A decade before the Bill of Rights was adopted, the 22-shot Girandoni repeating air rifle was introduced, one of which was later sent along on the Lewis and Clark expedition. And Kalthoff and Lorenzoni repeating flintlock firearms had existed for well over a century.<\/p>\n

Not to mention, the founders made extensive use of printing presses to distribute pamphlets and official government documents, including the new Constitution, rather than having them hand-copied as they would have been a few centuries earlier. Technology marches on.<\/p>\n

That last point illustrates the foolishness of the only-1780s-tech argument, as Scalia pointed out. What use is a First Amendment that applies only to hand-cranked printing presses and unamplified voices? That would leave the internet, television, radio, telephones, and all post-revolutionary means of communications unprotected from government censorship.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Have you ever been in a conversation with an intelligent-but-undereducated youngster? They’re likely to come up with highly original takes on issues, like “the US Bill of Rights only applies to the kind of guns they had at the time it was written“: Abdul El-Sayed, Michigan’s Democratic U.S. Senate candidate, is the latest politician to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[84,7,9,10,53,13,663],"tags":[715,49,1020,217,752],"class_list":["post-105549","post","type-post","status-publish","format-standard","hentry","category-government","category-history","category-law","category-liberty","category-politics","category-usa","category-weapons","tag-constitution","tag-guns","tag-progressives","tag-rights","tag-supremecourt"],"jetpack_shortlink":"https:\/\/wp.me\/p2hpV6-rsp","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/105549","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/comments?post=105549"}],"version-history":[{"count":1,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/105549\/revisions"}],"predecessor-version":[{"id":105551,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/posts\/105549\/revisions\/105551"}],"wp:attachment":[{"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/media?parent=105549"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/categories?post=105549"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/quotulatiousness.ca\/blog\/wp-json\/wp\/v2\/tags?post=105549"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}