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Due to the recent school shootings there has been much discussion of the Second Amendment to the U.S. Constitution. I’d like to add my two cents so that I can answer some basic questions about our Supreme Court and its recent decisions.

The first thing the average citizen should know is that the justices on the Supreme Court of the U.S. (SCOTUS) are divided on how the constitution should be interpreted. One side argues that the Constitution should be construed by the original intent of the founding fathers. Justices in this camp are called originalists and include such legal minds as Antonin Scalia and Samuel Alito.

The other camp believes that we have a living constitution that should change over time. Modern justices in this camp include Ruth Bader Ginsburg and Elena Kagan. These justices argue that the founding fathers could not have foreseen the changes that would occur over time and therefore they would have wanted the Constitution to be able to evolve with the times. Several important rights we see as fundamental today have resulted from this “evolving” theory of constitutional interpretation. For example, I challenge you to read a copy of the Constitution and find any text that gives a citizen a right to privacy.  Any person who can find such text in the U.S. Constitution should come to my office and show me. I will personally give them a sucker candy.

I tend to be an originalist thinker. I base this on the fact that the founders provided a mechanism to amend the Constitution. They didn’t make it easy, so the Constitution couldn’t be changed on a political whim, but they did envision a need for thoughtful changes to be made, and created a process to do that.

So what does any of this have to do with the right to bear arms? Well, recently, my mother, who is a self-described liberal, called to tell me that she had the solution to our gun control issues. She felt that since the SCOTUS had determined that there is an individual right to bear arms (the recent case of Heller v D.C.), we should be able to have as many muskets (the single shot muzzle-loading firearm available in 1791 when the Bill of Rights was ratified by the states) as a person wants.

I had to stop and think about that one. I even called a friend of mine from law school to discuss the implications. He laughed (Thanks Manuel!) and said my mother had me on that. If I believe the Constitution should be interpreted on original intent grounds then shouldn’t the intent be defined by the objects that the founders were familiar with? I had to admit I was puzzled. (Thanks Mom!)

It took me a day or so to work through the conundrum. It comes down to quill pens. I bet my mother would argue that the 1st amendment, dealing with freedom of speech, is a very important right. If you consider it though, should we be limited today to writing our political speech with quill pens and iron gall ink? Perhaps our newspapers should only be printed with single page typeset printing presses that were around in the late 1700s. Say nothing of freedom of speech not applying to television and radio, two mediums that never existed during the American Revolution. Even more important, would the 4th amendment search and seizure protections not apply to telephone calls or e-mails because the founding fathers had no clue about our telecommunication future?

I realized we do interpret the Constitution in an evolving context to keep up with technological changes. The important distinction here is the underlying reason why the founding fathers included the amendments. In 1791, when the Bill of Rights was ratified, our nation had just fought a costly war against a tyrannical British monarchy.

No doubt, the founders feared such a situation could occur again in the future if government was not able to be checked and kept under control. The 4th amendment prohibition on unreasonable searches and seizures was included to keep the government from snooping unless they had probable cause. The 5th amendment rights to due process (later applied to state governments by the 14th amendment) mean that the government can’t deprive you of your property or your liberty without process of law. They didn’t know that someday your property might include an automobile. They didn’t need to. They were keeping any government from infringing on your right to be secure in your persons or property.

For the 2nd Amendment, the right to bear arms, the same applies. In my opinion, the founding fathers envisioned a circumstance where the people might have to overthrow a tyrannical abusive government. The weapons they knew of back then may be different from today, just as a ball point pen might amaze the quill wielding fathers of our nation, but the sentiment would still exist.

There are arguments concerning what limits should be imposed. Should an ordinary citizen be able to own a tank? Various cases currently going through the courts of appeals throughout the U.S. are dealing with these limits. Some of these cases will invariably end up in the SCOTUS. Hopefully, Congress will avoid making emotional, poorly thought out, federal gun bans and allow the judicial process to continue. Without a doubt any federal law will be challenged and end up in the SCOTUS anyhow. Why muddy the waters?

In the end, my mother made me reevaluate my opinion of an evolving constitution. Minor changes in interpretation are necessary to adapt to changing technology. But I am even more rock solid in my belief that the original intent (why the founding fathers believed they had to include a bill of rights) is still the basis on which to measure our fundamental rights. So if you want to hand me a musket claiming it is the extent of my 2nd amendment right, I advise you to turn off your computer and find yourself a goose from which you can pluck quill pens because I suspect there won’t be anyone defending your first amendment right to free speech.