Back in March, SCOTUS heard oral arguments in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission. Some of the Q&A focused on what was not anticipated by the founding fathers. From the NPR coverage:
At the time the Constitution was adopted, Justice Antonin Scalia pointedly observed, "there was no such thing as the referendum or the initiative," so when dictionaries of the time referred to lawmaking power, it was "always the legislature" and "never the people at large."
The Court eventually found in favor of the AIRC in spite of Scalia's dissent. But this quote raises questions about the validity of one of the principles (apparently) guiding Scalia's legal opinions.
Let me make the case by an example. The second amendment to the Constitution states, in part, "the right of the people to keep and bear arms, shall not be infringed." I suspect that if you had asked the framers who wrote this for a definition of "arms" it would include single-shot muskets, single-shot pistols, knives, and tomahawks. There was no such thing as an AR-15 assault rifle. Or a 9mm Glock with a 30-round clip. Or an Uzi. So if one wants to argue that the meaning of "legislature" at the time did not include "the people at large", I would think that the argument, by analogy, would extend to the meaning of "arms" not including semi-automatic rifles and pistols. Therefore is the possession of such modern "arms" unconstitutional?
A lot of legal scholars debate this stuff. Just Google "textualism" or "originalism" and have fun for the next two weeks sorting it out. I'll just go on thinking about the amazing inconsistencies in conservative thought. And occasionally I'll wonder what Thomas Jefferson or James Madison would have to say about the meaning of "arms."