Clarence Thomas
Supreme Court Associate Justice Clarence Thomas (AP Photo/Pablo Martinez Monsivais)
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The oral argument in Bruen demonstrates that the conservative wing of the court is not sincerely interested in history, text, and tradition if the evidence cuts against them. What they are intent on doing is vindicating gun rights, rewarding the base of the Republican Party, and recasting the scope of the Second Amendment so that it resembles other modern rights transformed by the Warren Court and left-leaning champions of a living constitution.

In his opening remarks, Paul Clement correctly noted that the current scope of Second Amendment rights does not match the robustness of modern First Amendment rights or criminal procedure rights. But the operative word here is modern.

The original understandings of the First Amendment and criminal procedure rights, both in the founding era and the period of Reconstruction, were anemic by contemporary standards. There is nothing inherently wrong with Republicans and their Federalist Society–groomed justices supersizing the Second Amendment.

The left got its supersized rights in the 1960s, so now it is the right’s turn. The one thing such an approach is not consistent with is the right’s claim that originalism is principled, neutral, and intellectually rigorous.

— Saul Cornell in The Supreme Court’s Latest Gun Case Made a Mockery of Originalism

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42 COMMENTS

  1. The *danger* here is that the SCotUS shrinks the 1A from it’s current status. Such as, “Speech can have limits, because of implied ‘danger'”.

    Now imagine what a ‘Hate Speech’ law could do when interpenetrated by Leftist Scum…

    • Hate-speech laws are total bullshit. Always have been and always will be. Some of the most bogus legislation ever passed right along with the “ hate crimes” statutes. Scales of justice and equal enforcement will never apply with these stupid damned laws.

      • “Hate-speech laws are total bullshit.”

        You don’t understand….

        A crime motivated by hate is more criminaler, criminilistic, crimeier, mean, than a crime where the perp likes you.

        • so is it worse if i snap a yellow crayon or a brown one?
          a pink one would be self flagellation.
          they can’t call it fleshtone anymore.

  2. “Super-size” all the rights for all the people. I’ve no problem with that but then I’m not a homicidal, sociopathic, government employee or technocrat.

    • The author says “…the conservative wing…if the evidence cuts against them…” Then says (presumably without blushing) “….the Warren Court and left-leaning “”champions”” of a ***living*** constitution.”

      In other words if everything you do and say is not absolutely PERFECT then Conservatives are not serious, you are not in the authors opinion “principled, neutral, and intellectually rigorous.”

      However, if you are a “champion” that believes in a “Living” Constitution, that means whatever we say, whenever we say, then as a “champion” you are free to make it say whatever you want it to say and you are “principled, neutral, and intellectually rigorous.”

      You as a “champion” are unburdened with needing “evidence”, your only hurdle is to desire that the text read as you want it to and… it’s there… it magically appears (Roe vs. Wade). As such, “champions’ can make or remove rights whenever they see fit, anytime, anywhere.

      This is the most pernicious, insidious, untethered, and evil way to use the rule of law.

      • “This is the most pernicious, insidious, untethered, and evil way to use the rule of law.”

        In other words, Tuesday for leftists.

  3. Conflating history to reach a justification is not new. Indeed, any discussion of the individual rights protected by the constitution must, to be rational and reasonable, take into account that from here, most people try to project modern practice backward, assuming what is normal now was the same environment the framers knew. The problem began with the 14th Amendment.

    Even in the referenced article, the author cites state laws. The challenge is there for both pro and anti whatevers. The original Constitution was directed at controlling the central government, not the states (except where explicitly delegated to the central government). So it was that the central government was restricted in certain areas, yet the then States were free to organize themselves as they deemed appropriate.

    Today, confounded by the 14th Amendment, it is all too difficult to deal with the conundrum embedded in the 9th and 10th Amendments. Federalism was broken/destroyed by the 14th Amendment. Now the central government has “compelling interests” that override the Constitution. That is, the central government’s interests in controlling the individual is superior to the very people that created the central government.

    It is logically impossible to be an “originalist” regarding the constitution, because there are two versions: prior to the 14th Amendment, and post-14th Amendment. And it is further complicated as a result of the popularity of choking the constitution via mere legislation, in place of the amendment process.

    If we select the 1789 version of “original”, then States (“states” since the 14th Amendment) have the power to regulate firearms as they see fit. Thus, gun control laws are perfectly constitutional. If we chose the post-14th Amendment inversion of sovereign power in the US, then the states have little or no power to regulate personal firearms contrary to federal law.

    Pro or anti 2A, we want law to favor us every which way justifies our position; federal supremacy when advantageous; state supremacy when advantageous.

    The passage of time and politics prevents us from ever returning to the days and Constitution of the framers.

    • IANAL however where I would disagree WRT 2A is that the 10th Amendment holds whatever power is not delegated to the feds is delegated to the states or the people.
      I would argue by including 2A in the BoR that it has explicitly not been delegated to the states much like states cannot make laws against religious freedom or due process regardless of what 2A-like provisions were placed in many States constitutions…

      • “I would argue by including 2A in the BoR that it has explicitly not been delegated to the states ”

        The BOR did/does not “delegate” powers to the individual states. The States being sovereign over the federal government, created a constitution that “delegates” power to the central committee, and, in some passages, limits the powers of the states…where specifically declared (at the revocable pleasure of the states). The BOR is equivalent to Luther’s theses nailed to the door of “the Church”. The 9th and 10th explicitly that the states retain any and all powers not granted to the central government.

        Fast forward to the 14th Amendment, now it is the central government that (via the legitimate amendment process) grants power to the states in that all the restrictions on the federal government now apply to the states that created the federal government. Before the 14th Amendment, the States did, in fact, retain the power to individually control themselves, as regards speech, firearms, religion, and other matters the central committee could not interfere with. Massachusetts was the last state to “disestablish” an official religion….in 1833.

        If states retain the right/power to make their own pro-2A laws, the states also retain the right/power to make their own gun control laws. If the imposition of the federal constitution upon the states is valid (per incorporation of the 14th Amendment), then the states are subject to the same prohibition against “infringement” as is the central government.

        The overall point is that “everyone” is trying to fuse pre-1868 America, with post-1868 America, and somehow not arrive at an utterly confused state of so-called “shared power” between states and the central committee.

        “Originalists” are confounded by the barrier of the 14th Amendment. With that amendment standing, the “original” intent/meaning of the Constitution cannot be resurrected without further amendment. Which is why the matter of which “original” is important to understand, in all its nuances. A reversion to the 1791 Constitution would argue for zero interference by the central government regards control of firearms, and full-on control administered by the individual states…with no appeal to the federal government for intervention in settling the matter.

        • I think it is Sam and not 300 who is being anachronistic – projecting postmodern relativism onto the Founders as if they’d say “‘Life, liberty and property’ are my personal feelings, but if the good people of Connecticut vote to boil random children some day, that’s an equally valid opinion and none of our business!”

          The Declaration stated the Founders’ belief that (all) governments exist to secure citizens’ rights. If they viewed rights as “Things (only) the Federal Government can’t violate”, they would have secured them by prohibiting a Federal Government!

          The choice to establish such a government only makes sense under the contrary understanding (also consistently documented in the Founders’ writings): Rights are objective principles, derived from God’s will and/or the nature of human reason, which no one – no government and no individual – can violate, codified in the Constitution but existing before (and above) it.

        • None are so blind as those who will not see. 2A does NOT say “shall not be infringed by the federal government”, nor “shall not be infringed except/unless by individual states”. Interference with the right to arms is prohibited to both Federal and State governments, and county or city governments as well. It that were not true, there would not be a 2A, the right to arms would be included in 1A, and protected from interference by CONGRESS, but not by states, like the rest of the laundry list of civil rights addressed therein.

        • Sam I Am is 100% correct. I co-wrote an in-depth article on this subject for the Tenth Amendment Center a few years back entitled “National Concealed Carry Reciprocity is a Trojan Horse”. You can find it on Google.

          We’ve got to quit trusting the Feds with the protection of our rights (as if their courts are trustworthy) and look to our States, as being closer to home they’re easier for us to control.

          As for the 1st Amendment, for several years after the BoR was adopted three States still had official religious denominations. The 1A did not prohibit that because, as the preamble to the BoR says, it’s purpose was to limit the general government. Not the States. Each State has its own constitution and has the right to govern its own affairs according to the traditions and customs of its people. To believe otherwise is to reject the concept of self government.

        • CJII,
          Democratic “self government” as you’re describing means little beyond one vote in a government that can control every aspect of your life according to your neighbors’ whims.

          To constitutional republicans like the Founders, it means governing yourself according to rights that aren’t up for a vote, which limited governments of specific, enumerated, and delegated powers (at every level) cannot infringe, regardless of your neighbors’ irrelevant opinions.

          Again, the Founders were not postmodern relativists who believed that right and wrong varied with time and place, “customs and traditions”. They were much more closely aligned with Cicero, who wrote, “. . . [E]ven if in the reign of Lucius Tarquinius there was no written law in Rome against acts of rape, nonetheless Sextus Tarquinius contravened that eternal law by violating Lucretia the daughter of Tricipitinus. For reason existed—reason derived from the nature of the universe, impelling people to right actions and restraining them from wrong. That reason did not first become law when it was written down . . .”

          Not in 1787, not in 753BC, and certainly not differently between New Jersey and Georgia.

    • RE: “If we select the 1789 version of “original”, then States (“states” since the 14th Amendment) have the power to regulate firearms as they see fit. Thus, gun control laws are perfectly constitutional.”

      No matter how you select, slice and dice The United States Constitution Gun Control has never been, “Perfectly Constitutional.”

      When states had slavery, segregation laws, Jim Crow, etc. were related laws ever, “Perfectly Constitutional?” I’ll answer for you: No and Hell No.

      Since we are in your time machine History clearly confirms Gun Control is rooted in racism and genocide. Therefore it never was or never is possible for Gun Control to have “Perfectly Constitutional” standing anywhere in America anymore than slave shacks, nooses, colored signs, cross burning, concentration camps, gas chambers, swastikas, etc have standing.

      Bottom line…Gun Control does not deserve spit much less ever being described as, “Perfectly Constitutional.”

      • There is great confusion in your comment. Yes, prior to December 1865, slavery was constitutionally protected in that the central committee had no power to regulate slavery. Proof? 13th Amendment. If slavery was unconstitutional from the beginning, the 13th would be unnecessary.

        The War Between the States was initially about whether the constitution was a suicide pact, or a voluntary pact that could be quit at the pleasure of the signing States. The displeasure was that Congress insisted on trying to control slavery using simple legislation, rather than putting the matter to the amendment process. Only in 1863 did the war become about both preservation of the Union and abolishing slavery. And still, for some curious reason, a constitutional amendment abolishing slavery was considered necessary after defeat of the Confederacy, and preservation of the Union. The 13th Amendment was necessary because it was not only the Confederacy that maintained slavery, but four States that declined secession while retaining slavery. Those four States remained in the Union on the presumed promise that slavery would not be abolished in those States (because the issue at hand was Union, not abolition).

        The Second Amendment, in its establishment, did not put restrictions on the individual States. The same was true about even the 1st Amendment as regards official religions in the States. It is perhaps the greatest misunderstanding of our history that the founders, jealous of their State powers, made explicit statements (in or outside the constitution) that the US Constitution applied directly to the States in the same manner it applied to, and controlled, the central government.

        As previously noted, we too easily look at the post-14th Amendment world and unjustifiably decide that the founders intended all along that the US Constitution be applied directly to the power-preserving States.

    • Originalism is flexible enough to take into account amendments put into effect after the Founding. For example, as to the 14 amendment, the question is the public meaning at the time of its adoption. We would go through a similar analysis for other amendments. To interpret the 14th according to a 1787 understanding would be silly.

      • “To interpret the 14th according to a 1787 understanding would be silly.”

        Yet the founders answered that interpretation should be governed, at all times, by the conditions and understanding of the words at the time written. That is, what did the words mean at the time, not what can, at later date, be wrung out of them through linguistic gymnastics.

        If one wants a “living” constitution, interpreted through the contemporary use of words, fine. The problem I was pointing out is the notion that current interpretation is what the founders intended all along. As in a claim that 2A applied to the States from the beginning; it clearly did not (according to the founders). As in a claim that slavery was unconstitutional from the beginning, when the founders made clear that the power to regulate, or abolish, slavery was not delegated to the general government.

  4. “Living constitution” is a canard for the leftist view there is no absolute truth. They believe that even facts are dependent on context. Witness their efforts to wokify mathematics.

    You can ignore reality, but you cannot ignore the effects of ignoring reality.

  5. The 2nd. Amendment needs to be supersized to the point of eliminating the entire NFA and passing legislation to prevent another such paranoid and tyrannical replacement from ever happening again.

  6. The leftist authoritarian idea of a living Constitution is adjusting The Second Amendment to their liking. To accomplish that they turn to an agenda rooted in racism and genocide called Gun Control.

  7. You could describe Slate as Leftist but they are far closer to Communist than the garden variety “there ought to be a law” Leftist. Have a look back at their coverage of Hugo Chavez when he first got power. That puts them and everything they say firmly in the ignorable category.

  8. This is the epitome of a strawman argument.

    “The original understandings of the First Amendment and criminal procedure rights, both in the founding era and the period of Reconstruction, were anemic by contemporary standards.”

    That may be true to an extent, but Cornell falsely projects that understanding onto the Second. The Founders clearly said and wrote that every citizen should have a gun, and most did – without limitations on number or features; forms, background checks, licensing or registration (ever). There was nothing “anemic” or in need of “supersizing” about Founding Era gun rights.

  9. HA! The so-called ‘supersizing’ of the first amendment, to the extent that it was supported by the ‘old-left’, is hardly in favor with the ‘new-left’ today at all. It, like the constitution itself, is under constant attack by the modern left and all of the institutions it has captured (which is a good chunk of all of our institutions).

  10. Let’s be honest about English Common Law which existed before the founding of the United States of America and how English Common Law is supposed to inform/alter the scope of the United States Constitution (especially the Amendments) and our Common Law today.

    English Common Law was a respectable attempt to recognize and protect the inherent value and dignity of human beings. And yet English Common Law fails quite spectacularly in some respects since the Ruling Class who defined English Common Law compromised Common Law wherever necessary to maintain the supremacy of the Crown. In case you have not yet had your morning caffeine, Royals being supreme and requiring everyone else to be subservient to them–even to the detriment of the subjects–destroys the inherent value and dignity of human beings.

    When someone invokes ancient English Common Law to inform our understanding and application of the U.S. Constitution (which includes the Amendments) and our Common Law today, we have to recognize that the founding of our nation implicitly and explicitly rejected the English dogma of royalty. Thus, any aspect of English Common Law which was designed to maintain the supremacy of the Crown has no bearing on our understanding and application of our Constitutions and laws.

    It doesn’t take a genius to realize that English Common Law restrictions on subjects and weapons was all about the supremacy and invincibility of the Crown, NOT the inherent value and dignity of human beings (e.g. the “subjects” of the Crown). That being the case, English Common Law restrictions on keeping and bearing arms are irrelevant in the United States.

  11. “Thus, any aspect of English Common Law which was designed to maintain the supremacy of the Crown has no bearing on our understanding and application of our Constitutions and laws.”

    Preach it, brother !!

  12. I think that is a bunch of malarkey.

    Whatever enforces shall not be infringed would be appropriate.

    With the 14th amendment approved and added to the constitution, states have to observe shall not be infringed also.

  13. “2A does NOT say “shall not be infringed by the federal government”, nor “shall not be infringed except/unless by individual states”.”

    It wasn’t necessary, as the founders were aware of the need for a bit stronger central government, but fearful of a more powerful central government. The founders represented, and jealously guarded the powers of the States that preexisted the Articles, or the Constitution.

    Do you have references where the founders indicated that the US Constitution was to apply directly to the States?

    Do you have a reference (prior to the 14th Amendment) within the body of the Constitution (or BOR) that indicates/directs/demands that the compact is defense against State government encroachment on the rights of its citizens?

    Do you have a reference (prior to the 14th Amendment) to a document that declared States could not have official religions? (Massachusetts ended their official religion in 1833…without demand from the central government).

    Do you have a reference to a document that founders declared the States will conform their State Constitutions to the US Constitution?

    To understand the founding, you must set aside the operation of the Constitution post-1868. And not impute current understandings, hopes, dreams, contortions to the era of the founding of the nation.

    If your premise is correct, what is the purpose of the 14th Amendment?

    If your premise is correct, what is the purpose of the 13th Amendment?

    In short, the Constitution and BOR were statements by the States that the federal government was being constrained, not the States.

    Both the Articles of Confederation, and the Constitution were expression by the States that they were addressing the federal government, not the States. Both the Federalists and Anti-Federalists were skeptical of national government, not State government. Prior to the Articles (and the Constitution), the States were independent nations. The Commerce Clause of the base Constitution was established as a means to preclude the individual States from waging economic war on each other (which was not unknown prior).

  14. Hrm, I generally find the concept of originality to be a canard. I particularly find it to be a canard when spoken of in terms of critiquing “the right” on the SCOTUS.

    There was a recent argument by some midwit attacking SCOTUS over this and blaming Scalia for it.

    Well, Scalia ain’t on the court and he wasn’t an originalist. He was a textualist who argued very specifically against attempting to discern legislative intent, basically saying it was both impossible to do in most cases and irrelevant even if you could. The law was what was written, not what was intended. If intent and text differed then the legislature should have written down what they meant.

    The matter is covered in depth as a back and forth between Scalia and Dworkin in the Princeton University Press #1997, in a section spanning pages 3-48, 115-28, and 144-49 and entitled A Matter of Interpretation: Federal Courts and the Law: An Essay.

    It’s also reprinted as The Role of United States Federal Courts in Interpreting the Constitution and Laws, p 175-93 in Philosophy of Law Ninth Edition. Feinberg, Coleman & Kutz.

    • Great references. Bookmarking them for expanding my education in how the judiciary works (or pretends to).

      Thinking that sometimes, “originalist” is considered interchangeable with “textualist”, like a rising CPI is equated with “inflation”, which is, in common exchange, the same as making things more expensive without an accompanying rise in overall income.

      • Nah, homeslice specifically said that Scalia was all about original intent which is utter bullshit.

        The entire thing was a hit piece because the author was worried that the plebs might actually score a 2A win with this case.

        It was either lies or, if you’re charitable, an argument from ignorance. Personally, I’m not feeling very charitable.

  15. By the time the midterms and next presidential election roll around you’ll be able to create a viable business of safe rooms for all the liberals to cry in.

    Nothing has even occurred yet and they are already wailing like the female dogs they are 😀

  16. I would argue that the Warren court moved to reclaim the 1A which was severely damaged by groups like Adams and progressives like Woodrow Wilson. There was no “super sizing” thereof.

  17. @CJII

    “Each State has its own constitution and has the right to govern its own affairs according to the traditions and customs of its people. To believe otherwise is to reject the concept of self government.”

    Self-government is very messy, and very scary. It also presents us with a conflict we don’t like: lack of uniformity across the nation, when we want it.

    While the 9th and 10th Amendments protect unenumerated rights and powers of the people, and the states, they protect the right of the states to pass, and/or repeal, laws related to the possession and use of firearms inside state borders. However, the 14th Amendment controls. With the “incorporation” of the US Constitution into/onto the states, the restriction of “shall not be infringed” also is applied to the states….as in, “no amendment is absolute”.

    What is most difficult here is to separate thought processes about the operation/impact of the US Constitution pre-1868, vs. the current reality – the Constitution as we see it in operation today must be the way the founders saw it, as well (the US Constitution applies to the individual states today, thus it must have applied in 1791).

    BTW, found your 10th Amendment article interesting.

  18. @tsbhoa.p.jr
    “so is it worse if i snap a yellow crayon or a brown one?”

    Depends on whether either crayon likes you, or not.

  19. “mom says green favors me.”

    Thus, if you break a green crayon, that isn’t a hate crime because the green crayon is nice to you. It follows, also, that breaking a brown or yellow crayon would not be hate crimes, either, because they demonstrate neither like, nor dislike. Breaking those colors would not even rise to crime status…..

    Oh, wait just a minute.

    Breaking crayons that show no conclusion or attitude toward you would, indeed, be an actual hate crime. Breaking brown or yellow simply because they have no attitude toward you, and you have no obvious attitude toward those colors would actually be a hate crime; your casual dismissal of brown or yellow crayons as having no value is the ultimate hate crime: that of being non-crayons, disposable on a whim, with no regard to value, and potential value, with no sense of morality.

    Wow. Even non-hate crimes are hate crimes. What a country !

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