One of the arguments cited by supporters of the individual mandate is that the Militia Act of 1792 required militia members to purchase rifles.
Seeking precedents for the law’s requirement that Americans buy health insurance, some constitutional scholars are reaching back 220 years to a law signed byGeorge Washington: the Militia Act of 1792.
There were two laws, actually, that empowered the president to call up state militias for the purpose of defending the new nation. Those conscripted were required within six months to arm themselves with “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball.” Rifles could be substituted for muskets.
Akhil Amar and Ian (not Ira) Millhiser argue that the fact that George Washington was comfortable with it means its cool!
“This is the gold standard. You’ve got George Washington vouching for this law,” says Akhil Reed Amar, a professor of constitutional law at Yale Law School. “In my view, it’s huge and key.”
Going back to the generation that wrote the Constitution makes the precedent even better, adherents say; it shows that the nation’s founders had no problem requiring citizens to enter into commerce.
“George Washington thought that a purchase mandate was OK,” says Ira Millhiser, a legal policy analyst at the liberal Center for American Progress.
This is what I call “retrospective originalism.” It doesn’t look to what words meant, or what the enactors intent was, but rather to the fact that if the framers were comfortable with it, it must be good. Here is how I describe this concept in my forthcoming review of Adam Winkler’s Gunfight in the Texas Law Review:
Second, the history of early gun laws can be used as evidence of what the framers of the Second Amendment were comfortable with. That is, examples of the founding generation placing limitations on the right to keep and bear arms suggest that this is how the Second Amendment was meant to operate. Or, opposition to such laws indicates that those laws were not compatible with the Second Amendment. In other words, if it was good enough for James Madison, it is good enough for us! I call this approach “retrospective originalism.”
This method must be distinguished from the original-expected-application blend of originalism, which looks to how the framers would expect the Constitution to be applied to modern issues—such as how the Fourth Amendment would apply to a device that can measure heat signatures inside a home. Retrospective originalism, in contrast, uses the practices of the Founding era as evidence of how the provisions were intended to operate back then. For example, Winkler cites to many of the laws passed in the Colonial era aimed at promoting gun safety as evidence that the Framers were comfortable with strict gun control laws. These ordinances—many of which were cited in Justice Breyer’s dissent in Heller—are illustrations that “gun possession . . . balanced with gun safety laws was [an idea] that the founders endorsed.”
Randy’s reply is somewhat unsatisfactory–he, of all people, should not be doubting aspects of originalism:
For some opponents, the fallacy of the argument is best exemplified by the need to reach back 220 years to find it. “Look where they have to go to try to find a precedent,” says Randy Barnett, professor of legal theory at Georgetown University Law Center and one of the lawyers representing the National Federation of Independent Business.
This is an aspect of originalism that has gone understudied, I think, largely because of it’s intuitive appeal. Hell, if George Washington did it, how can it be unconstitutional. (Well, Washington’s role in the ratification of the Constitution was barely ceremonial, though, his actions to define the role of the role of the Executive is quite significant)