The bar for gun regulation is set so high that it’s centuries away — literally. That’s the thinking behind this week’s ruling on the state’s ban on high-capacity magazines.
On Monday, Cowlitz County Superior Judge Gary Bashor found the magazine ban violated the Second Amendment, pointing to prior U.S. Supreme Court rulings, including District of Columbia v. Keller from 2008 and New York State Rifle & Pistol Association v. Bruen from 2022.
In his opinion, Bashor defends the ruling by using the language of originalism, a theory that posits that laws can only be interpreted through the lens of the time.
He argues the Framers anticipated technological advances, and that if they had wanted to regulate modern weapons, they would have done so during their time. Since there were no restrictions similar to Washington state’s ban on higher capacity magazines in 1791 — the year the Second Amendment was ratified — then Bashor says the law is unconstitutional.
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We disagree. The writers of the Constitution could not have predicted the ability to shoot dozens of bullets in mere seconds. Restricting the sales of ammunition cartridges holding more than 10 rounds should be allowed, in the same way other technology — like cars and the internet — that didn’t exist in 1791 is regulated today.
No clairvoyance needed
It’s true that the Founding Fathers were, as a rule, educated men who were interested in science and technology. As Bashor pointed out, some were inventors. Thomas Jefferson is credited with the invention of the swivel chair, while Benjamin Franklin famously invented bifocals, among many other things. In his ruling, Bashor claims such abilities suggest the Framers would have written restricted gun legislation if they deemed it necessary.
We think this ascribes a level of foresight to the Framers almost like clairvoyance and assumes the reason there have never been regulations on high-capacity magazines is because the Framers anticipated the after-market accessory and believed they were acceptable. Isn’t it more reasonable to believe these laws weren’t on the books in 1791 because the technology didn’t exist?
The originalist framework also seems to be applied exclusively to guns. We don’t expect the Framers to have well-informed stances on aviation safety or what constitutes fair public access to communication satellites. The value of a seat belt wouldn’t be fully apparent to someone whose only travel options are a sailboat or a horse.
In light of advances in technology, we have set legal standards for many things that did not exist in the 18th century, regardless of the lack of regulation from the time of the Constitution’s founding. Yet, we are expected to believe the Framers knew the direction firearms technology would progress in and make laws regarding it.
The Founding Fathers were far from technological prophets. While the idea that the cotton gin “saved” slavery as an institution is hotly debated, its explosive effect on the practice’s profitability is indisputable. Had the Framers been able to foresee the cotton gin as it’s suggested they could do with guns, abolitionists within the Continental Congress would likely have tried to ban the product rather than let slaveowners gain enormous economic power through “King Cotton.”
Changing with the times
Elevating the Framers’ view to be the only true lens through which we can analyze law also dismisses the wisdom of those who have come since. Our ability to rethink decisions of our predecessors is something we can’t afford to forfeit.
Does 1954’s Brown v. Board of Education (ruling public schools segregation as unconstitutional) hold less value than 1896’s Plessy v. Ferguson (ruling racial segregation laws as constitutional) because Plessy was tried while people who ratified the Fourteenth Amendment were still alive? We certainly don’t think so.
While it is very worthwhile to look back on the legal history of American jurisprudence for guidance, originalism would turn what should be a foundation for insight into handcuffs. We need the courage to admit that the Founding Fathers were just like us: people doing the best they could with the information they had at the time.
The original Constitution was written by people of the 18th century, from the perspective of people from the 18th century. The Framers knew that the world was always in flux, and government would need to change with the times. They gave us the ability to amend anything, even the Constitution itself, because they knew they weren’t perfect.
We’re not saying this to diminish them. We just want to reiterate that predicting the future is hard. A half-century ago, people didn’t imagine they would one day carry a computer in their pockets with more processing power than supercomputers that once filled entire rooms, and then mostly use that technology to wirelessly send cat videos to friends.
This is all to say that the future isn’t always what you expect it to be. Asking dead people to have predicted it and written laws around it just isn’t reasonable. The Founding Fathers were accomplished political thinkers, but they did not write their laws by predicting the future.