Politics should never be part of decisions on legal matters

February 24, 2026

The term “originalism” refers to the idea that the U.S. Constitution should be interpreted based on its original meaning at the time it was created and adopted. And therefore, an “originalist” is someone who understands the logic of this position and who accepts it.

The contrary position held by many is that the Constitution is a “living document,” which means that what the Founders thought 250 years ago is meaningless today, and the Constitution should be interpreted today using concepts that are “more modern,” even if they are actually contrary to the original meaning.

Under this way of thinking the right of free speech could be interpreted as meaning not that we are free to say a broad array of things, but that we can only say what the controlling individuals allow us to say, however limited that may be.

That mentality is like believing the Constitution is merely an ancient guideline, sort of like a drawing of the design of a house that can be altered to suit the desires of the owner.

But that concept is both foolish and dangerous. It’s like believing that the commandment “thou shalt not steal” really contains an unwritten phrase: “unless you want to.”

When the Constitution and laws are viewed under this foolish concept, it is referred to as “judicial activism.” Every law and constitutional ideal changes with the tide of human preference. That is like being on the ocean in a boat with no motor, sails, or oars, and being completely at the mercy of the weather and the water.

Originalism prevents activist interpretation of the Constitution’s concepts, and establishes standards our Founders intended to last forever, or at least until they are changed by appropriate methods, such as through acts of Congress supported by a substantial majority of the people.

An area where there is great difference on meaning is the Second Amendment of the U.S. Constitution, which reads: "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.”

That language seems fairly clear. But some disagree, and try to alter the meaning to help achieve their goals. However, if the original language is not clear enough, perhaps the U.S. Supreme Court’s ruling in District of Columbia v. Heller in 2008 may help. It defines the Amendment’s meaning as an individual right to possess firearms for lawful purposes, such as self-defense in the home, and other similar things.

Contrarians to the original context of the Amendment say that it does not say what types of Arms are covered and which ones are not. Of course. That is the salient point.

The Founders did not say that pistols are covered but rifles and cannons are not. They said “keep and bear Arms”: Meaning, all Arms. 

We have a wider variety of Arms/weapons around now than in the 1700s. Anti-gunners want to outlaw “assault rifles” — whatever those are, as no legal description exists — and magazines holding more than 10 rounds. They also want to outlaw automatic rifles and machine guns. Their argument is that the Founders would likely have not included these in the right to bear Arms, if they had existed in the 1700s. We will never know if that is true.

However, we must remember that our Founders were not worried about different types of guns, they were concerned about specific types of government. One type of government they meticulously avoided was a pure democracy, because of the danger of that type of government to become tyrannical, where 51 percent of the people could vote to jail or kill the other 49 percent.

And while some of today’s weapons can be more of a problem than the others, the imperative question remains: Why should law-abiding citizens be forbidden from owning them if they want them? 

Many states have gun laws, and some of those laws are very restrictive. Yet, in some of these states, gun crimes are commonly committed, anyway. It isn’t the guns that are the problem, it is the persons who have the guns, often illegally, that is the problem. Many law-abiding citizens own one or more guns. Neither the person or his or her guns have committed crimes.

Instead of interfering with the constitutionally guaranteed rights by limiting or outlawing gun ownership, we instead need to work very hard to teach people from a very young age about right and wrong, and being a good citizen. Discourage crime through high standards, strict adherence, and severe/harsh punishment for disobeying those standards and the laws that they have produced.

Teaching our young people how to be a good human being is a critical factor, one that has been ignored much too often in recent years. The nuclear family has fallen drastically in practice, and our education system is infected with many people who are interested in pushing their preferred political ideals more than presenting approved subject matter.

Consequently, the sense of proper behavior, and understanding and appreciating our system of government are well below the acceptable level. But it is not too late to begin restoring these concepts to where they should be.

Having a “living” Constitution is having no Constitution

One of the serious challenges to America’s future is the tendency to interpret the U.S. Constitution and our laws liberally. That is, to understand something written years, decades or centuries ago using the current fluid understanding of how things “ought to be.” 

This concept of a “living” Constitution completely discards the reasoning that occurred when the document was created, and substitutes today’s “preferences” for the principles as understood, intended and written.

Strict interpretation of the language of the Constitution, interpreted through knowledge of how things were during the creation of the document and how the Founders thought, is essential to the nation keeping the magnificent principles with which it was designed. This is known as “originalism,” or maintaining the original intent of the Constitution and laws.

A good example of why that is important is in the meaning of the Second Amendment to the U.S. Constitution, which reads: “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.”

There are two elements under debate, the first being the meaning of the term “militia.” Today, the term often applies to formal military organizations similar to the National Guard. Thus, the anti-Second Amendment folks suggest that only such organizations are guaranteed the right to keep and bear arms. But when the Constitution was being written, the militia consisted of private citizens who could be called together to act in defense against an attack. It was not the army, nor even a formal organization. 

The other issue is that the anti-Second Amendment folks say it does not give anyone the right to own any weapon they want. People often say that the Founders had no way to imagine the existence of so-called “assault weapons.” And that is true. However, the Amendment guarantees the right to keep and bear arms. There are two different concepts: Keeping arms means to own and have arms, while bearing arms means they may be carried by the people.

It also does not distinguish between the types of arms people may keep and bear. There were knives and swords, etc., and there were hand-held muskets, long rifles, and cannons. The 2nd Amendment doesn’t say to keep and bear muskets and swords, it says to keep and bear arms, meaning whatever arms were available. People were not prohibited from owning a cannon if they chose, to drag it along behind them or tie it to their horse if they wanted. Muskets, long rifles and cannons were the “assault weapons” of their time, and they were precisely what the Amendment guaranteed the right to keep and to bear.

They also try to persuade us that the purpose was to guarantee the right to keep and bear arms for hunting and home defense, but the main threat generating this right was the potential for a threat from an armed enemy, foreign or domestic.

The idea of a “living Constitution” essentially renders the Constitution to mean what a majority of the U.S. Supreme Court Justices says it means at any given time. Today, it may mean something, and next year it may mean something else. That, of course, means the Constitution means nothing, if what it means is subject to the aspirations of a few people at any given time.

The Founders were smart guys. They had seen various types of government be tried, and fall short. Sometimes falling very short. So, they devised a different idea. And the document designed to govern this nation was comprised of broad principles, one of which was great personal freedom, which would last in perpetuity.

Those principles may not be changed on a whim, or because one or more people in a position of power decides to change one or more of the principles.

Thus, if sufficient reasoning and support for changing some portion of the Constitution exists, there is a process for doing that, and that process involves much more than the personal opinions of jurists. The Constitution may be amended, but through a rigorous process.

The National Archives describes this process: “The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention.”

This process was designed to be a difficult one, in order to prevent quirky, impulsive changes to suit some circumstance, which may be fleeting, and change after a time. It was designed to prevent what too many justices of the United States Supreme Court and judges like to do: make law and change the Constitution from the bench.

Under this process, the Constitution will remain what it was designed to be: a standard for the nation that does not change with the tide or the direction and speed of the wind, unless there is a good reason for it and a substantial amount of support for it.

Passing laws is not always the best solution to our problems

The Bill of Rights, the first ten amendments to the U.S. Constitution, addresses rights that are secured in the body of the Constitution, but in general, less specific terms. The Bill of Rights came to be because the rights it detailed were considered so important that they should be specifically acknowledged, so that there will be no doubt as to their importance, and to make it crystal clear those rights are guaranteed to the people.

The Second Amendment to the U.S. Constitution solidifies the right of the people to own firearms. Today, this is the most controversial of the ten. There is an on-going effort to pass more restrictive gun control laws, and every time a gun is used in a crime the loud protests crank up again.

Emotions or bad reasoning, and sometimes-ill motives, are behind this movement. Somehow, many or most of the anti-gunners blame not the shooter’s evil intent and illegal acts, but the gun. They not only disbelieve, but ridicule the oft-used expression, “a good guy with a gun can stop a bad guy with a gun,” which gives a strong clue to their actual intention: to rid the country of all guns. Given the laws that already exist that make killing illegal, just like the laws against illegal drug use that are routinely ignored, more gun laws will fail to achieve their goal.

The NRA and its members are the favored boogeymen. These folks are often blamed for the actual gun violence as well as for opposing more stringent gun restrictions, despite the fact that none of them have ever actually been the ones responsible for any of these atrocities.

It is not irrelevant that in the case of the evil cretin who killed and injured some 50 church goers recently, was not an NRA member, but it is important that it was a former NRA instructor that intervened after the attack, shooting and disabling the killer, and likely saving a few lives. A good guy with a gun DID stop a bad guy with a gun.

The real problem that we have is not that the Second Amendment needs to be rewritten, reinterpreted or repealed, but that the impulse to attack, maim and kill be controlled.

Similar problems exist with the First Amendment’s protection of free speech.

There are some restrictions on free speech. For example, you can’t yell “Fire!” in a crowded theater, as the age-old saying goes. And some speech is illegal because it harms individuals. Libel is one: a published false statement that is damaging to a person's reputation; a written defamation. Slander is another: making a false spoken statement damaging to a person's reputation. And inciting violence is illegal, and so-called “fighting words” may be illegal.

The First Amendment protects most speech, especially unpopular speech. So-called “hate speech” is not illegal, unless it incites violence. Political comments challenging the government or government officials is also protected speech.

And it protects freedom of the press, which is a long-standing and important function of the First Amendment. It is crucial that news media be free to provide important information to the people so that they can be well informed and prepared to make knowledgeable decisions. It is particularly important that the press be free to publish factual information about government and those who serve the people in government, no matter how much they may dislike it.

But that protection presupposes the media will discharge its critical duty honestly, following the principles of accuracy, fair play and impartiality.

The First Amendment guarantees freedom of the press, but does it also guarantee that the people and organizations that provide the news will behave themselves? Unfortunately, as does the Second Amendment, it assumes honest and upright behavior, but it cannot guarantee that people will do the right thing.

What about those episodes when media organizations and their employees fail in their duty to the people and instead produce distortions, exaggerations, and errors that are not adequately corrected, as well as sometimes providing outright false information? The First Amendment protects the people who commit these wrongs, unlike those private individuals who commit libel and slander? But there is a reason for that.

Both the First Amendment and the Second Amendment represent our Founders recognition of principles of freedom. We are bound to honor the Constitution, making changes very infrequently, and only in response to a great need that does not weaken the founding principles. Changes must not be made merely to achieve some supposed current need that may fade away in a few years.

We can pass laws against guns to keep them out of the hands of bad guys, and at the same time keep them out of the hands of good guys who won’t kill anyone, but will use them for legal purposes, including self-defense.

And we can pass laws to punish news people who abandon ethical standards, but will also cast a pall on the dissemination of important information, as news folk carefully walk a thin line.

More laws will not correct the character flaws of killers and incompetent news people, so let’s focus on that problem.