Ask Jordan: How do originalists justify modern guns 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

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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.”