The six conservative justice on the U.S. Supreme Court have seemingly come to think of themselves as historians, able to excavate the original meaning of the Constitution from archival sources revealed to them in the briefs of petitioners and respondents. The result has been bad history and worse law, culminating in last term’s New York State Rifle & Pistol Association v. Bruen, where the majority invalidated New York’s restrictions on carrying concealed handguns because it was deemed inconsistent with “this nation’s historical tradition of firearm regulation.”
So we see it once again, the court’s decision being questioned because they aren’t experts in history. Same bit of noise we got out of an Mississippi District Judge a month ago.
The argument goes that the Supreme court isn’t qualified to do historical research. Even though the entire American Legal system is built on the concept of “Common Law”. Common law is laws that are applied the same (in common) across all courts. I.e. how a law is interpreted in the past is how it is going to be interpreted in the future.
We have only one court which is not bound by precedent, the Supreme Court. They are allowed to say “We got it wrong in the past.” We saw this with Dobbs case where they overturned Roe.
They looked at the Constitution, they looked at the understanding of abortion law at the time. They looked at all the amendments to the Constitution (which are included in the Constitution) and said “We can’t find anything in the Constitution that gives the federal government the power to regulate abortion. Thus it is a states issue.”
Justice Thomas made it clear that laws that infringe on the right to keep an bear arms must fit within the text, history and tradition of the second amendment at the time of its adoption, 1791.
He also mentioned in 1868 as well because this is when the 14th amendment was adopted which said that the federal Constitution extended into the states. It was there so that the former confederate states couldn’t pass slavery laws that re-enslaved blacks in violation of the 13th amendment.
It turns out, however, that historical similarity is in the eye of the beholder. Thomas thus dismissed the many 19th century gun control laws as non-analogous “outliers,”…
That’s right, notice that 19th Century means the 1800’s. Steven Lubet wants you to conflate the time at the beginning of the 19th century with the time at the end. In the early 1800’s there were no gun control laws to speak of. But in the 1870s, after the civil war there were a number of Jim Crow laws passed that infringed on the rights of blacks. Many of those laws disarming blacks.
Since the New York law was passed in 1911 was in keeping with the racist laws of the deep south they should be allowed to stand.
This is the problem with allowing the courts to downplay their own ability to do historical research and to actually bother to read our own laws. The words of the second amendment are very clear. They are easy to understand. It takes work to twist them into different meanings. The number of times people have misquoted the 2nd in order to prove it was a collective right is mind boggling.
In addition, there is a great deal of legal history where the supreme court has said explicitly what the words of the second mean.
The biggest clue to this is that everyone of these people that pass these infringements do so while saying it doesn’t infringe because.
It isn’t an infringement because this gun is to deadly “Is it an arm? Yes. Does this restriction infringe on my right to keep or bear it? Yes.” Then the law is unconstitutional.
Well there needs to be an exception because no right is unconditional!
The law says I can’t carry in Times Square. Is it keeping me from arming my self with an arm? Yes. Is it infringing on my right to bear that arm where I want to carry it? Yes. Then it is unconstitutional.
As Slate’s Mark Joseph Stern put it, “modern technology has made guns vastly more powerful and deadly, and the exponential growth in population creates new challenges that were not present hundreds of years ago.”
Which is irrelevant. It doesn’t matter how much the population has change or how the technology has changed. Shall not be infringed.
Judge Joseph Goodwin read Bruen correctly when he said “there are no laws in 1791 requiring serial numbers and the governments assertion that serial numbers help solve or stop crimes can’t be considered.”
Of course, there were no such laws. Serial numbers were unknown in 1791; they came into wide use only with the advent of mass production of firearms. “The first legal requirement for serial numbers did not appear until 1934,” and then only for machine guns; their removal was not criminalized until 1938. “Serial numbers were not broadly required for all firearms . . . until the passage of the Gun Control Act of 1968,” 100 years after ratification of the Fourteenth Amendment.
Which is exactly the point. There were no laws at that time. The constitution says “the right to keep and bear arms shall not be infringed.” If that text doesn’t cover forcing serial numbers on all firearms then you can’t make a law punishing a person for having a firearm with no serial numbers.
That Mississippi Judge said “[no judges are] experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication”. Do you racist much Judge?
The entire opinion piece is full of “But this law is good!” statements. Totally ignoring why that law is unconstitutional or just plain bad.
It might be a “good” thing to remove the right to posses firearms from convicted violent felons. It is “bad” to remove the right to possess firearms from people that have not been convicted, even if they have court orders or restraining orders issued against them. The people of this country are innocent until proven guilty. You don’t get to punish them for something they haven’t been convicted of doing. Would you take away a person’s right to vote just because a spiteful ex- got a restraining order against them?
The Supreme Court’s bad history
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