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PaperclipPerfector  1yr ago (text post)   29600 thread views

Culture War Roundup for the week of October 2, 2023

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I don't hesitate to say that the Bruen decision was a masterstroke, especially in the context of advancing an Originalist interpretation of the Constitution.

It 'sneaks' in the idea that the rules mean what they people who wrote them intended them to mean, since presumably the people who wrote the Constitution did so with the intention of making it comply with those other rules and regulations that existed around the time all of this was written, and further if they tolerated a particular rule after the Constitution was ratified, you can certainly argue they didn't intend for the Constitution to contradict those rules, regardless of any ambiguities that may exist.

I'm more of a pure textualist myself, but I do agree with the idea that the rules were written with a particular meaning in mind, and that the proper way to 'change' the rules is... to follow the procedure for changing them. So taking the approach that the rules can just be reinterpreted over and over again, especially in ways that generate greater ambiguity is, in my view, completely antithetical to the idea of having written rules in the first place.

And just about the only way to reduce ambiguity is to ground your interpretive standard on something firm enough to form a valid premise for further legal reasoning. Yes you will never be able to reach the perfect a priori premises from which all else will flow, but anything that doesn't at least directly build off of the original text is way too ad hoc to provide a predictable/reliable jurisprudence, especially as your system of interlocking precedents gets more complex. In my genuine opinion, anyway. This is why I agree with Dobbs overturning Roe irrespective of my beliefs about abortion.

So in short, Bruen's requirement that government has to demonstrate that their restrictions on firearms rights are in keeping with traditional, long-accepted regulations going back to (ideally) the original founding of the country puts the burden of proof in the right place. The State doesn't have a heavy burden, it's just a very restrictive framework to work within... which to me is the point of having those restrictions.

And if we (i.e. the people of the country) can't agree that looking at the rules in place when our Nation was formally founded is at least a guideline for figuring out what the actual words in the document meant, then we're fundamentally questioning the validity of the document itself. Which is fine with me, but for some reason people want to maintain the validity of the document whilst changing the rules it contains to suit their purposes.

If Bruen is carried through to its logical conclusion, we should probably expect that we'll be getting legal machine guns (new ones, not grandfathered) in the not-too-distant future.

If the logic behind Bruen is applied to other aspects of the Constitution, a lot of precedents that are nearly a century old are potentially on the chopping block. And oh boy Justice Thomas seems positively GIDDY to start swinging that axe.

And being clear, I think this creates an interesting double-bind if you want to keep some of those precedents in place. "You can't touch these cases, they've been around for decades!" is easily rebutted by "the standard we're now using to examine those cases goes back a whole century or so before those cases were decided, so if age is the question, this standard wins." You'd have a hard time arguing "the older a judicial precedent is the more deference the Court should grant it!" AND say "but times change and the law has to change with it."

Hence the progressive Justices tend to appeal to more nebulous concepts when reaching a decision, allowing for reconsideration later.

whilst changing the rules it contains to suit their purposes.

You seem to be implying that jurisprudence that takes a narrow view of the rights afforded under the 2nd amendment is somehow a recent innovation or reinterpretation, but the collective rights interpretation runs back for almost two centuries. See Aymette v. State of Tennessee (1840), which upheld a ban on the concealed carrying of weapons - in that particular case a knife. The key here was no just the militia but what 'bear arms' could reasonably be considered to include;

To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this State shall be compelled to bear arms provided he will pay an equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he had a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

See also State v. Buzzard (1842), City of Salina v. Blaskley (1905) and US v. Adams (1935).

That's not the collective right interpretation though. It's the Miller standard of bearing arms useful for war, orthogonal to individual versus collective. Meanwhile some nobody Lysander Spooner writing in 1856 noted the right as individual and for personal defense as much for militia service. Or Charles Humphrey writing in 1822 "that in this country the constitution guarranties to all persons the right to bear arms." Warren Burger was a tool.

On reflection my comment was poorly written, but both Aymette and Buzzard cover collective rights no?

From Buzzard (Ringo);

That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown: consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide.

The question of arms useful for war is closely connected to this because if the purpose of the 2nd Amendment (or state equivalents) was collective then it would provide no protection for arms both not 'borne' in fact and not able to be borne under any circumstances.

Lysander Spooner

Indeed so, my point here is not to suggest that there is no equal tradition of, and evidence for, an individual right interpretation, merely to contest the point in the comment I replied to that more restrictive interpretations being deployed now are simply innovations that not even their proponents believe are consistent with the Constitution. While we are here though, see the reverse case from Benjamin Oliver, Rights of an American Citizen (1832);

The provision of the constitution, declaring the right of the people to keep and bear arms, &c., was probably intended to apply to the right of the people to bear arms for such purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.

If Bruen is carried through to its logical conclusion, we should probably expect that we'll be getting legal machine guns (new ones, not grandfathered) in the not-too-distant future.

That's a very Laconic "if". We haven't seen any such challenges. Nor challenges to laws against interstate sale of firearms (which are definitely not historically supported), nor any of the other various Federal laws. Bruen was obiter dictum from the moment it was issued; almost no one will get relief from it.

Oh good point bringing up interstate commerce.

Justice Thomas has made his thoughts on the breadth of the Commerce Clause known as well:

https://www.acslaw.org/?post_type=acsblog&p=1066

That's not to say he gets what he wants, but you're thinking in the correct direction for where things might go!

Several cases have raised the claim that the NFA is unconstitutional but they generally haven't gone anywhere. In particular the AutoKeyCard case raised it though doesn't rely on it (unsurprising given that Matt Larosiere is one of the defense attorneys in that case) but that one lost in an odd way related to jury decisions on definitions.

And that's what's going to keep happening. All attempts to challenge will end up in a procedural morass or get dismissed based on other issues, to avoid courts (even, perhaps especially, conservative courts) having to confront the fact that a "right to keep and bear arms" means people do in fact get to have guns. Until the Court swings back anti-gun at which point the RKBA will be extinguished once and for all.

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