Let’s Talk About Original Intent

by W. D. Ehrhart

In a withering, indeed breathtaking, succession of recent decisions rendered by a U.S. Supreme Court now dominated by justices vetted by the Federalist Society and nominated by presidents who did not win the popular national vote, most of the past 120 years of legal progress and precedent have been obliterated.

The rationale for this assault on common sense and common decency is a doctrine called “Original Intent,” which states that only those guarantees intended by the framers of the Constitution in 1787 and set forth in the document ratified two years later are valid. This is also sometimes defined as “strict construction,” and is always trumpeted by so-called conservatives as a fundamental tenet.

I say “so-called” because their arguments and interpretations of our Constitution are neither conservative nor historically true. Abortion in this country, for instance, was legal from the nation’s founding until well into the 19th century. But for now, let’s take a closer look at just one example of the flagrantly lunatic application of original intent and strict construction.

The 2nd Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The most common firearm of that day was a smooth-bore muzzle-loading flintlock musket that was over four and a half feet long, weighed over ten pounds, had a muzzle velocity of 785 feet per second, could fire no more than three rounds a minute in the hands of a very skilled person, and was accurate up to fifty yards. Today’s AR-15s and their knock-offs are barely three feet long and weigh only seven and a half pounds, are fed by magazines holding 20 or more rounds, have a muzzle velocity of 3300 feet per second, are accurate up to 600 meters, and can fire 60 to 100 bullets a minute, even in the hands of a rank amateur. All you have to do is keep pulling the trigger.

I can’t prove this, but I find it extremely hard to believe that George Washington, Benjamin Franklin, John Adams, James Madison, and all those other Founding Fathers had the original intent to allow any American over the age of 18 to possess the ability to murder dozens and scores of men, women, and children.

But I can prove—because the words are right there in the 2nd Amendment itself—that what those men had in mind was “a well regulated Militia.” And what did they mean by that?

While regulations varied somewhat from state to state, during the late colonial era and into the 18th century, every able-bodied free male between the ages of 16 and 50 was required to enlist in his state’s militia. He was required to provide his own firearm. Local militias were organized into companies of 32 to 68 men. Companies were organized into regiments with regimental commanders appointed by state governors.

Militia companies were required to train six days a year, with regimental musters held periodically. Failure to appear for training could result in fines or corporal punishment. Repeated absentees could be sent to prison.

That is what is meant by a well-regulated militia. That was the original intent of the framers of our Constitution. The right of the people to keep and bear arms shall not be infringed in order for them to participate in a well-regulated militia. It’s right there in front of your eyes, in print, on paper, in every copy of the Constitution I’ve ever read.

Though I sometimes find myself scratching my head, in fact I’m pretty certain that John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh all read, write, speak, and understand the English language.

The National Rifle Association is not a well-regulated militia. The Proud Boys are not a well-regulated militia. Lauren Boebert, Thomas Massie, and Marjorie Taylor Greene are not a well-regulated militia. Nor were Eric Harris, Dylan Klebold, Adam Lanza, Stephen Paddock, Omar Mateen, Dylann Roof, Nikolas Cruz, Salvador Ramos or any of the other mass murderers whose names we’ve come to know in the past 25 years.

Clarence Thomas writes in his decision in New York State Rifle and Pistol Association v. Bruen that the 2nd Amendment guarantee of the right to bear arms is “not a second class right.” Okay, fine, but where’s your “well-regulated militia”? Where is your “strict construction”? Where is the framers’ “original intent”?

Even the late-though-hardly-lamented-in-some-quarters-at-least Antonin Scalia, when asked what the difference was between himself and Justice Thomas, replied, “Look, I’m an originalist, but I’m not a nut.” Alas, it seems that at least six members of our highest court—from which there is no appeal—bear a remarkable resemblance to a large can of Planter’s Mixed Nuts.


W. D. Ehrhart, PhD, is a former Marine Corps sergeant and veteran of the American War in Vietnam. He is the author of a memoir trilogy: Vietnam-Perkasie, Passing Time, and Busted.

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