"Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,"
Chief Justice John Roberts for the majority in United States v. Rahimi
The Federalist Society for Law and Public Policy Studies is dedicated to judges’ deploying textual “originalism” in interpreting the Constitution – applying only the historical and cultural reality that existed when the Constitution or its amendments were enacted, eschewing consideration of technological or social change since. This is how “originalist” Supreme Court Justice Antonin Scalia decimated the possibility of meaningful gun control in the 2008 Heller vs DC, applying the historical reality of 1789, when the Second Amendment was enacted. The era of flintlocks and muskets! I’m serious. “Originalists” effectively stagnate the Constitution to obsolete bygone eras that may have little or no relevancy to contemporary matters.
To put it mildly, the Federalist Society is extremely conservative. “Headquartered in Washington, D.C., it has chapters at more than 200 law schools and features student, lawyer, and faculty divisions; the lawyers division comprises more than 70,000 practicing attorneys in ninety cities… It is one of the most influential legal organizations in the United States…
“According to Amanda L. Hollis-Brusky [chair of the politics department at Pomona College and an American constitutional law scholar who specializes in the politics of the U.S. Supreme Court,] the Federalist Society ‘has evolved into the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents.’ It vetted President Donald Trump's list of potential U.S. Supreme Court nominees; in March 2020, 43 out of 51 of Trump's appellate court nominees were current or former members of the society, [including] Trump's list of potential U.S. Supreme Court nominees; in March 2020, 43 out of 51 of Trump's appellate court nominees were current or former members of the society.” Wikipedia.
Logic will tell you that there can be no justice if the Supreme Court is allowed to comb through a vast array of history in existence when each provision of the Constitution was enacted… and pick and choose which historical extracts suit their purpose. Only conservatives apply originalism. Thus, the Federalist Society gave high marks to a federal appellate justice, a former law professor at the Jesuit founded University of Notre Dame, a law clerk to Scalia and a seeming adherent to originalism. Her nomination, by Mr. Trump, sailed through Senate approval. Amy Coney Barrett became a justice on the US Supreme Court. When selected, eyes focused on her seeming Catholic disillusionment with Roe v Wade, and when it came to reversing that long-standing precedent, she did not disappoint.
Barrett may have held strong anti-abortion views, but recently, it seems that her adherence to originalism was beginning to hit that logical wall. In an unrelated trademark matter… almost “a year ago, in a case involving the admissibility of confessions by co-conspirators, [she] accused [die-hard originalist Clarence] Thomas of making too much of a very limited historical record… ‘The Court overclaims. That is unfortunate,’ Barrett wrote in a solo concurrence, referring to Thomas’ majority opinion. ‘While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most,’ she declared...
“‘The views of preceding generations can persuade, and, in the realm of stare decisis, even bind,’ Barrett wrote, using the Latin term for the principle that courts should adhere to past rulings. ‘But tradition is not an end in itself — and I fear that the Court uses it that way here… It presents tradition itself as the constitutional argument. … Yet what is the theoretical justification for using tradition that way?’ she wrote.
“Barrett’s next critique amounts to fighting words among legal conservatives: She compared Thomas’ approach to the kind of amorphous, multi-pronged legal tests that conservatives frequently accuse liberal judges of concocting… ‘Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test,’ she asserted…
“And in a speech last year at Catholic University , Barrett reiterated the point. ‘We have to be very, very careful in the way that we use history,’ she said, adding that deploying historical evidence to advance a legal conclusion can be like ‘looking over a crowd and picking out your friends.’” Josh Gerstein, writing for the June 19th Politico.
Why does any of this matter? She’s still a staunch conservative in a court where originalism predominates: the 6 – 3 Trump Supreme Court. But cracks in that Court, perhaps a realization, that their recent decisions have helped kill thousands of Americans, may be sinking in. If originalism is the metric for Second Amendment cases, then the hundreds of mass shootings using semiautomatic weapons will continue unabated (more lethally with the recent, Court-approved addition of a bump stock). How exactly does that square with Barrett’s Catholic faith? Where does “Thou shalt not kill” common sense, supported by centuries of America laws against murder fit? After all, there are no constitutional limits on those laws; murder has always been wrong.
The Supreme Court case that matters is United States v. Rahimi, which addressed laws that take away the right of purported domestic abusers to carry a gun. In an amazing ruling, issued June 21st, only one dissenter, Clarence Thomas, used originalism to justify allowing domestic abusers to have the right to carry guns. While Chief Justice, John Roberts, wrote the majority opinion with a feeble attempt to apply contextual history (see above quote), I think one Trump appointee, Amy Coney Barrett, just may have seen the light (insert: deeply religious shaft of light bathing the moment) that you can have a tight originalist judicial metric in judging constitutional matters or you can have justice… but not both at the same time. Barrett and the swing vote, Chief Justice John Roberts, could begin to end the most inane basis to interpret the Constitution: originalism. Or not. Might other members of the Trump-configured see that light?
I’m Peter Dekom, and if a constitution is to be a platform that is intended to guide a nation through time, especially the US Constitution (which is the most difficult to amend in the entire democratic world), then it must support not just the past… but act as our guide in the present and into the future.
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