Originalist Sin

Most everyone by now knows of the Dobbs case from the Supreme Court that overruled Roe v. Wade. It is noteworthy, as well as foreboding, that the majority conservative bloc on the court instructed us that their search of history revealed no evidence that women had any rights in their bodies that were ever recognized by the exclusively male power ruling institutions existent over the millennia before the adoption of our Constitution in 1789. 

Rather than condemn that history as inequality and injustice borne of ignorance, the Supreme Court instead voted to perpetuate it as if chiseled in stone, with no flexibility despite evolving knowledge and societal recognition of basic human rights applicable to all people. 

This, in reality, is the grim fallacy of originalism, the technique of interpreting the Constitution through the lens of its long dead, white male, slave-holding drafters and the traditions of their era.

It sentences today’s populace and legislators to bear the chains of yesterday’s limited knowledge and even prejudice. A fair analogy would be a Supreme Court ruling that modern medicine is constitutionally limited to those remedies for disease known to doctors in the 18th century. 

Dobbs v. Jackson Women’s Health Organization is one example of jurisprudence lagging far behind society. To peg a judicial ruling in the 21st century on archaic views about women centuries ago is not only irrational, it carries on the despicable tradition of misogyny in past cultures.

Thus the 5th Circuit Court of Appeals applied the originalist formula, using the lens of white males from centuries ago, to legislation prohibiting possession of firearms by those with domestic violence restraining orders, to rule that such orders violate the Second Amendment rights of the abuser, as in the recent case of United States v. Zackey Rahimi.

This decision illustrates the folly of the originalist approach to today’s issues and our attempts to fashion legislative solutions. First, the firearms of 200 years ago are not the firearms of today. A single-shot musket is not the firearm of a high velocity semi-automatic with large capacity magazines and high velocity bullets that pierce body armor. Second, domestic violence committed by the firearms of yesteryear does not appear to have been an issue addressed back then, so it is not surprising to find no guidance from analogies in that era.

We live in different times, with exponentially greater dangers from the weaponry on the market now, not then. Yet the courts are supposedly bound by a dearth of guidance from a non-existent and even ignored problem in past history.

The facts of the Rahimi case are disturbing; if anything, they demonstrate the need to prohibit possession of firearms by those presenting a threat of domestic violence. Rahimi had a history of gun violence — he had fired multiple shots into a person’s residence, followed the next day by shooting at a driver of a vehicle that he had collided with. He then returned in a different car and shot again at the other car, subsequently shot at a constable’s vehicle, and continued his spree by firing multiple shots in the air after an acquaintance’s credit card was declined at a burger restaurant.

A judicial restraining order was filed against him after he assaulted his girlfriend that prohibited him from stalking her or possessing a firearm. He nonetheless continued to possess firearms despite the order and was charged with a felony under federal firearms law. The 5th Circuit overturned his conviction, holding that, notwithstanding his history of gun violence, the court’s search of history of the 18th century and even earlier common law heritage did not reflect any analogies that would indicate that our forefathers would have taken away his right to possess guns under the Second Amendment. Translated: Back in those days, the victim was fair game for retribution rather than forfeiting the abuser’s right to a gun.

That’s originalism in a graphic nutshell. It is beyond stupid. It confronts modern problems with ancient views about other things far off the mark. If the reader has the appetite, I invite them to digest the court’s fare about Charles I, Charles II, Oliver Cromwell, the English Militia Act of 1662 etc. on your trip down the rabbit hole. Bottom line — all this is a nonsensical distraction to keep our country marooned in a time warp of white male supremacy governance.

The media today is overwhelmed with almost daily accounts of entire families being murdered by armed domestic violence terrorists taking vengeance over a failed marriage or relationship. This is the outcome all too often that absolutist Second Amendment jurisprudence wreaks on its victims. Incidents like these necessitate meaningful gun regulation and repeated calls to focus attention on the urgent need to protect the people, not the absolutist gun rights advocates or the profit margins of the gun industry.

This is the true cost, paid every day throughout our country, because of our clueless unhinged judiciary that wants to be guided forever by dead white guys. This is even insulting to the memories of the deceased founders, who placed the interests of the people in life, liberty and the pursuit of happiness as the supreme goal of government.

Thomas Coffin is a retired United States magistrate judge. He served 24 years in the U.S. District Court for the District of Oregon, from 1992 to 2016.