Originalism is alive and well. It’s revival and subsequent spread is probably the most lasting legacy of the late Justice Antonin Scalia.
Founder intention is absolutely unknowable and it's a ridiculous argument.
I'm being glib, but your broader point is right - Jefferson was skeptical of permanency, but other Founders weren't. I also think Jefferson was just wrong. One of the things that needed to be balanced or accounted for was figuring out how to provide a sense of stability, which the Monarchy had done previously. I am super skeptical that the US would have survived as long (or survived the Civil War) if the Constitution went through a re-write every generation. There's no way to have any sort of long term vision in this scenario.
No, he did not. He thought that the government should work on cycles of 19 years, which could include re-evaluating the Constitution, but focused mainly on extension of debts, term limits, governmental ownership of land. The "Jefferson thought we should rewrite the Constitution every 19 years" trope is used to launder disliking a Constitutional provision but having no way around it but to throw the baby out with the bathwater.
EDIT: changed "and has" to "but having"
Yeah, if only they left some kind of papers where they described in detail what they intended. For example, with respect to the Helvering v Davis case, which I mentioned, and which decided on what the constitution meant when it talked about General Welfare, wouldn’t it have been great if we had some authors of the constitution explain it like this:
> Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
> Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."
> But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
Alas, founders just dropped by, left us with the constitution, and then disappeared in the puff of smoke. They didn’t write any Federalist Papers, no notes from the constitutional convention survived, and whether the General Welfare clause meant “federal government can do whatever it wants” or exactly the things they took effort to enumerate doesn’t matter, since the constitution would have passed either way, it’s not like the state delegates even cared one way or the other...
More seriously, while I can understand arguments that the constitution of the founders wouldn’t work for America in 20th century, the idea that we cannot know what the founders intended is completely and utterly absurd, because in most cases we know exactly what they intended.
The "originalists" on the Supreme Court had no problem interpreting that to mean everyone gets a gun, regardless of their participation in the militia to defend the state. U.S. v Miller (1939) and the rise of a professional national army made the Second Amendment irrelevant until 2008.
That's when your boy Scalia wrote the majority opinion of D.C. v Heller, where the conservative majority reinterpreted the Second Amendment to ignore the first part (and the previous Supreme Court decision (U.S. v Miller) and state that rather than being in the context of a militia, the right to bear arms should be applied to individuals without context.
Far from trying to apply the principles of the founders to the Constitution, the conservative judges have again and again proven that they exist as a political adjunct to the Republican party, in the true model of activist judges overturning precedent whenever it doesn't fit their politics.
http://www2.law.ucla.edu/volokh/beararms/statecon.htm
For example, Pennsylvania had this in 1776, more than a decade before 2A was ratified:
"That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power."
Vermont had almost the same, word for word, in 1777.
The reason why 2A in the federal constitution doesn't really bother to mention this is mostly because it was in large part meant to be a contract between the feds and the states, protecting the latter from encroachment by the former. This is also why e.g. 1A says "Congress shall make no law" - and indeed, early on, it was perfectly okay for states to limit freedom of speech, subject only to their own state constitutions. The states had very real concerns about the feds trying to disarm their militias, since the Brits tried to do exactly that during the War of Independence; and that is why the militia clause is there.
But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level:
"I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution
The reason why the issue with the lack of clarity didn't really arise early on is simply because the federal government didn't have the grant of power to pass legislation of this nature that would target individuals rather than states. The earliest 2A cases were attempts to reference it in disputes between states and citizens, and in those the courts have ruled that it is out of scope there (this was before the 14A incorporation doctrine). US v. Cruikshank was the pinnacle of that approach. But if you stick to that approach consistently, then you have to do the same with 1A, 4A, and 5A - there's nothing special about 2A that would make it distinct from all those. So the Heller decision didn't re-interpret 2A - it merely pointed out that 14A applies to 2A in an obvious way.
I also find it curious that you cite US v. Miller, even though the decision in Miller didn't say anything about membership in a militia, but rather the suitability of the firearm in question to militia service - the judges decided that a shotgun with a barrel shorter than 18" has no "reasonable relation to the preservation or efficiency of a well regulated militia", because "it is not within judicial notice this weapon is any part of the ordinary military equipment" (i.e. sawed-off shotguns are not used by soldiers). So Miller essentially said that 2A does not protect firearms that do not have a military purpose. Ironically, taken to its logical conclusion, this means that it protects exactly the kinds of firearms that are the most heavily regulated today.
> "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution
This quote is consistently taken out of context to support a radical position on the second amendment. The quote is made in the context of class inclusiveness — he's not suggesting every member of the population was a member of the militia. Furthermore, Congress would define the militia as free, white males 18-45 in 1792 — hardly a broad application.
Here is the full quote:
"Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, etc., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty.
Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are.
But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered."
It's a very broad application, when you consider that it is exactly the set of people who had any political rights at the moment (i.e. voting citizens), who were also deemed fit to serve.
FWIW, Congress eventually passed the Militia Act of 1903 (same one that established the National Guard and the State Defense Forces), which gave a revised definition that is still in force today, and which dropped the "white" requirement - but kept the "male" and the age range, because those were still deemed the basic criteria for any kind of military service at the time. It would make sense to update it again to remove the "male" part - but we'd probably have to fix the draft to apply to all genders equally, first.
Not that any of it matters. The point is that militia duty was the most important reason to protect RKBA from the states' perspective, hence why it was the one that ended up in the text - but that doesn't mean that it strictly defines the scope of the right. Again, looking at the state constitutions at the time, of those that are explicit about the scope of the right wrt individual self-defense, all include it, and none exclude it. The same people who wrote those, also drafted the national constitution. It would be rather surprising if they suddenly decided that it means the opposite in that case - and, indeed, from the minutes of the conventions, we know that they did not.
That's very explicitly not a broad application, which was exactly my point. It's a very narrowly defined group of people who can be "trusted" to perform their militia duty. If we are to follow that original intent, we absolutely have a right to qualify those who keep and bear arms to people who can be trusted to faithfully execute their duty. This group does not includes "all the people, excluding some political officers".
I always find it amusing when the same people who argue for originalism also place all kinds of qualifiers, inferences, and mind-reading around that intent, as you have done here. If militia service wasn't an important idea to include in the wording in order to gain consensus, they wouldn't have included it. Some states wanted militias to keep slavery in check, others valued individual rights, and others yet wanted to make sure they could repel the British if they came back. It's a bit arrogant to try and assign any one motive to a diverse group like the founders.
Not that any of it matters. It's a piece of paper that's open to interpretation. Currently we are stuck with a radical interpretation, but any reasonable person can see how that policy is failing us, and the popular will exists to change it.
FWIW, I'm not an originalist (nor right-wing in general), nor a huge fan of the constitution. I am pro-gun, but coming from the left, not from the right.
I also don't think that there are any actual originalists currently on SCOTUS, and the ones that claimed to be (like Scalia) were selectively using that excuse, but that's another story.
Arguing that the 'well regulated militia' clause is a requirement rather than prefatory is something that original documents do not back up. Painting the originalist movement as a bunch of shills doesn't seem to be fair, or helpful.
For Madison's opinions, see Federalist papers 29 and 46 https://constitution.org/fed/federa29.htm https://constitution.org/fed/federa46.htm
Important takeaway with regards to militias: both papers argue that a generally armed populace is a necessary but not sufficient requirement for the fledgling nation to maintain it's own common defense.
Jefferson's opinion given in a letter to John Cartwright many years after the fact (duty to possess, with no regard to serving as a part of a well formed militia. Duty to serve also referenced separately later in the letter):
https://founders.archives.gov/documents/Jefferson/98-01-02-4...
Keep in mind also that we know for a fact that arms were kept for private use by the Hamiltons, as well as at Mount Vernon and Monticello, they were far from tools of the new federal estate to be taken away upon their existence becoming troublesome.