“To justify [gun control] regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Supreme Court Associate Justice Clarence Thomas writing the majority opinion in this year’s 6-3 decision in New York State Rifle & Pistol Association v. Bruen, which found NY’s requirements for granting concealed gun permits unconstitutional.
To understand the absurdity of the above majority opinion, you have to understand the basic approach of Supreme Court Justices who apply “originalism” – looking to the relevant meaning of a constitutional provision or amendment only within the context of society as it existed at the time it was passed – except when they want a different result. That the Second Amendment was passed in 1789 (part of the Bill of Rights), the era of single-shot flintlocks and muskets, requires “originalists” completely to ignore the evolution of weaponry into a world of modern assault weapons with rapid fire capacity and large magazines.
The champion of “originalism” is now deceased former Associate Supreme Court Justice, Antonin Scalia, who in January of 2013, during a lecture at Southern Methodist University, declared that the U.S. Constitution is not a “living document,” arguing that original meaning of the Constitution is the best way to interpret it. He argued that the Constitution is “not a living document” and is “dead, dead, dead.” In his 2008 majority opinion in Heller vs District of Columbia, Scalia wrote an interpretation of the Second Amendment that had not been made in over two centuries… that effectively the Second Amendment, despite its “well regulated militia” language, created a ubiquitous and fundamental right for Americans to carry guns, free and clear of most efforts at government gun control. No prior Court had ever made that ruling.
In that narrow 5-4 Supreme Court decision, Scalia launched into a diatribe that referenced British law dictionaries and caselaw from the 1700s. Subsequent British legal scholars reviewed his references to those old cases… and simply said he miscited their findings and thus misapplied non-existent precedents in trying to ascertain the meaning of the words in that 1789 amendment. To ignore technological and demographic change over centuries and apply the law as if nothing has changed would seem ludicrous, especially when the decisions apply rather directly to change in technology. Why do we have an Air Force, a Space Force or legal requirements for telephones, televisions and the Internet?
But that notion of originalism, as absurd as it is, is the declared judicial modus of interpretation for currently sitting Supreme Court justices like Clarence Thomas and former Scalia law clerk, Amy Coney Barrett. The under-title quote above from Justice Thomas illustrates his approach to constitutional interpretation, again in a case involving gun control legislation. But as lower federal courts have faced challenges to most efforts to install common sense gun control – in a nation with over 300 million civilian guns, including over 20 million semiautomatic assault rifles and mass shootings killing hundreds every year – they are often at a quandary in exactly what they should used as the legal basis for their decisions. In both Heller and Bruen, judges were admonished to look to “this nation’s historical tradition” (circa 1789) when reviewing the constitutionality of gun control legislation. Huh? History books depicting practices and dictionaries’ definitions from the 18th century? Wow, that is truly inane.
Writing for the November 2nd Weekly Journal of the American Bar Association, Debra Cassens Weiss tells us: “U.S. District Judge Carlton Reeves said he isn’t a trained historian, and neither are U.S. Supreme Court justices who ruled in June that gun regulations can’t be upheld unless they are consistent with historical tradition.
“In an Oct. 27 order, Reeves said the Supreme Court’s opinion in New York State Rifle & Pistol Association v. Bruen requires him to ‘play historian in the name of constitutional adjudication.’ Yet neither he nor the justices are experts ‘in what white, wealthy and male property owners thought about firearms regulation in 1791 [when the Second Amendment took effect].’
“Reeves asked the parties in the gun case before him to submit briefs on whether he should appoint a historian to assist him as a consulting expert. CNN described Reeves’ opinion as ‘scorching.’
“Reeves said historians even disagree on whether the Second Amendment confers an individual right to bear arms, as the Supreme Court ruled in 2008, or whether it confers a more limited, collective rights to bear arms. And historians have been ‘unsparing in their criticism’ of Bruen, he said.
“Reeves is a federal judge for the Southern District of Mississippi who was appointed by former President Barack Obama. The case before him is a challenge to the federal ban on felons possessing firearms. Lawyers for Jessie Bullock contend that the law must be struck down because founding-era legislatures didn’t prohibit people such as him from owning guns simply because of their status as felons.”
Indeed, the current Supreme Court, often described as a radical right-wing tribunal with little or no respect for earlier Supreme Court rulings, appears to be roguishly obsessed with a simple formula to determine constitutionality. Originalism was never expressed as a bona fide jurisprudential methodology by our Founding Fathers, who instead believed that they were creating a template that could survive and adapt as the nation changed and grew. That sitting conservative Supreme Court majority is making a mockery of our entire system of justice.
I’m Peter Dekom, and while judicial ethics and earlier precedents mean nothing to our rogue Supreme Court, 18th century history books and dictionaries are determinative?!
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