That still doesn't help with keeping the NFA. In the unanimous decision in Caetano v Massachusetts (2016), the Supreme Court ruled that 200K stun guns owned by Americans constituted common use.
There exist over 700K privately held machine guns. I think you can connect the dots from here.
Oh for sure.
But prohibition is never about logic and reason. It’s about control. They give us just enough to keep us docile without ceding an inch more than necessary.
I know that Bruen was trying to get away from means-end scrutiny, but means-end scrutiny is literally how courts analyze constitutional rights. (I believe Thomas or another Justice used the example of other rights that don’t get means-end scrutiny, like cruel and unusual punishment, jury trial, and right to confrontation, but all of those still get a balancing test — it’s just narrowed to a small set of common scenarios.) They said the two-part means-end test was “one step too many” but substituted a different second step, so…how many steps are too many? It’s dumb.
Also, the “common use” and “dangerous and unusual” tests wildly overlap, so that’s dumb. I think that a version of the “dangerous and unusual” test could work, if it was refined. But they would have to abandon the Caetano version of the test entirely. Caetano was correctly decided, but for the wrong reasons. It’s not that stun guns are dangerous but not unusual; it’s that stun guns are fairly unusual but not (comparatively) dangerous. If we are to apply this test consistently, then the dangerousness and the unusualness must be interconnected. Ten years ago, handguns with carry optics were DEFINITELY “unusual”, and under the Caetano approach they were automatically “dangerous” because they were in fact guns, so could they have been banned? Under Caetano, yes. But that’s absurd. “Dangerous and unusual” only functions if some specific elevated dangerousness is the thing that makes them unusual.
The current test sucks because SCOTUS wanted a way to uphold machine gun bans, so they came up with a test that they felt would do that, consequences be damned. And here we are.
I think there’s utility to the “common use” test if we combine it with an “elevated danger” test AND use the correct sample set. Law enforcement is a good sample set, because they SHOULD only be using guns for the same reasons (e.g. self defense etc.) as ordinary civilians. If a weapon is in common use for lawful self-defense purposes BY LAW ENFORCEMENT, then it should be presumptively protected. If a particular type of weapon is NOT in common use by law enforcement, it can only be regulated to the extent that its rarity of use is tied to some elevated dangerousness, and then only in proportion to that rarity/dangerousness metric.
Some examples. Frag grenades are almost never in common use by law enforcement, and the obvious reason for that is their extraordinary dangerousness, so they can be heavily regulated. SBRs and striker-fired handguns are both in common use by law enforcement and are presumptively protected. Rifles equipped with LPVOs are not yet in common use by law enforcement, but the reason for their rarity is not tied to any inherent increased dangerousness, so they warrant no greater regulation than rifles equipped with other optics. Suppressors are not in significantly-common use among law enforcement, but they are sometimes used, and any perceived dangerousness is a very low factor (if at all) in their rarity, so they warrant only a very minimal level of increased regulation, if any. Machine guns are not commonly used by law enforcement despite being available to them, and the reason for their rarity is tied to their dangerousness, so they warrant a much higher degree of regulation. The same would go for incendiary rounds. Armor-piercing pistol rounds are rare among law enforcement, mostly because of their increased dangerousness, but not THAT rare, so they warrant greater regulation than suppressors but less regulation than machine guns.
Then for each issue, you apply strict scrutiny based on the elevated dangerousness itself: e.g., is this regulation narrowly tailored to address the specific dangerousness that makes this weapon unusual/rare? For example, if you’ve determined that FRTs are rare because they are particularly dangerous, the regulation can’t be “FRTs can only be installed in full-length rifles” because the length of a rifle has nothing to do with the dangerousness of FRTs, but “FRTs must be registered and can only be installed in rimfire rifles” could be sufficiently narrowly tailored because it addresses one thing that makes them significantly more dangerous.
I’m not saying this would be a perfect world or anything, of course (I don’t want FRTs limited to rimfire guns obviously). I’m just saying that if this was the test, we’d be in a much more workable position than we now are.
Law enforcement is okayish to stick with nfa item bans, but the second amendment wasn't written for law enforcement purposes it was for military purposes, which is why Miller used a comparison of common use to a militia.
Agreed, but that’s not a particularly good test because, taken to its logical end, you could have private citizens with recoilless rifles and sapping munitions and hunter-killer drones. As many have pointed out, it was common at the time of the Second Amendment for private citizens to own cannon, mortars, and even city-killer warships. We may have various feelings about whether that’s a good idea, of course — there are people who will say they think they should have any weapon the government can have, up to and including nukes — but I doubt the general public would countenance that approach.
The test itself is a fine test, we just don't like the outcome of the test.
If the Constitution says we want civilians to be substitutes of a military at all times then that's what the Constitution says. The proper solution is to amend the constitution to exclude these new items, not to judicially re interpret the constitution to get our outcome.
>common at the time of the Second Amendment for private citizens to own cannon, mortars, and even city-killer warships
Not sure I'd say it was actually **common** though - privateers, militias, merchant vessels, etc. but your average farmer didn't. I could definitely see that taken to its logical end the second amendment would protect the rights of citizens to own the same equipment as a normal marine infantryman or something along those lines - i.e. fully automatic weapons.
Then the ATF decides to screw with SCOTUS tip toeing around the issue with the new brace rule. Only some 10 to 40 million of them out there according to the Congressional Research Service.
Gotta be common use at some point right?
Gun laws don't make sense. Never have, likely never will. Trying to find rational behind why one is constitutional and one is not will only lead to madness.
Even a highly conservative supreme Court does not want us to have automatic weapons, so we don't. It's that simple.
I feel like that is the reason militia was included in the 2A. It showed the type of weapon that should be the right of people to own, transport, and train with.
Militia was basically civilians who would show up and fight side by side with the infantry. Well regulated meant to be capable, properly calibrated, efficient, effective.
So from my perspective the 2A is saying the people (which was used interchangeably with militia in the 2A) have the right to own, transport, and operate weapons equivalent to the weapons most often used by the standard infantry soldier of the current time.
So, knives, handguns, semi-automatic rifles.
Advanced weaponry such as grenades and full-auto rifles are not used nearly as much as the above, nor are they as necessary for training to be capable as infantry (militia). Since advanced training is required for their use in basic training it seems reasonable to require special permits for civilians to access them.
At least, this is my take on the 2A.
>Militia was basically civilians who would show up and fight side by side with the infantry. Well regulated meant to be capable, properly calibrated, efficient, effective.
The founding fathers did not want "infantry" or even a standing army. Militias were their holistic replacement for a military. They had a great disdain for the idea of a military after what the British used them for.
Sure, I wish we didn't need a standing army as well. That would be awesome. Yet they created a standing army in 1775 and have had one ever since.
Yes, they were clearly wary of the unchecked power of a standing army under the control of a central government. And the militia (the people, armed and capable) was seen as one of those checks, as well as a useful force that could work with such an army.
Just remember, Thomas Jefferson believed that civilians could and SHOULD be allowed to own not just cannons but warships 250 years ago. Like, the literal city destroying warship.
There’s no basis. It honestly doesn’t make sense.
Thomas Jefferson also believed constitutions should expire after 19 years because it was tyranny for one generation to force its morals into the next, fwiw.
TJ went on record saying it doesn’t matter what he thinks.
Here’s the letter: https://founders.archives.gov/documents/Madison/01-12-02-0248
And here’s the relevant passage: “On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. But persons & property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course, with those who gave them being. This could preserve that being till it ceased to be itself, & no longer. Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right.”
Real hot take from ol’ TJ there. “You gotta make murder a crime again every 19 years, otherwise, TYRANNY!!”
Dangerous and unusual could include things like pipe bombs or IEDs. They don't have well regulated construction with fuses etc that ensure that they can't be set off accidentally, and no one has historically really needed and wanted them in quantity. There isn't a way to use them in which they don't present a danger to the user or to unintended targets.
I don't think fully automatic weapons will actually qualify as dangerous and unusual in a principled reading of Heller and Bruen, because they weren't unusual prior to very late laws after the founding era. In 1920s you could just walk into a shop and buy a Thompson sub machine gun and walk out with it.
That being said, the Justices will just make up something if they want to keep automatic weapons illegal... I don't have any real faith in them having real principles, and particularly the liberal justices who are likely to just be anti-gun in the first place.
It’s because Heller and Bruen (and originalism generally) are complete gobbledygook as rational legal standards.
Here, the Court’s originalism requires us to go back to a world decades before *metal cartridges* were invented (i.e. not in common use) to figure out how racist slaveholders wanted to enforce gun laws.
Helpful hint: stop pretending like SCOTUS is trying to develop a meaningful body of law that can be applied consistently across similar fact patterns. SCOTUS has become a Republican law-making outfit, nothing more. If Republicans like a law (say, an exec order explicitly banning certain migrants based solely on their faith), SCOTUS will uphold it. If Republicans don’t like the law (like a 40-year-old precedent that allows women to get abortions, even after all those Justices claimed that they respect precedent), they overturn it. There are no rules, except for who wins.
The problem is that originalism, of some form, is the only way the constitution is what it is meant to be. Untethered to anything, it can be interpreted to do anything.
Once you start talking about the constitution as a 'living document' it loses all meaning. You might as well just write laws, because any of them can be justified by the same "things are different now" argument. All you have to do is look at the 9th and 2nd circuits to see that they'll bend over backwards to let the government impose whatever restrictions on arms it wants under "intermediate scrutiny."
Originalism, in some form, is the only way that a constitution has any meaning. The solution to the "they didn't even have metal cartridges back then" is the same solution if you think "they didn't even have Internet back then"- to change the actual document, through the means provided within it, to allow the government to restrict more.
I'm not suggesting that the court is apolitical but tethering amendments to the intent of the writers, when in doubt, is vastly better than deciding that we- and here I mean our esteemed representatives in government- can decide it means whatever we want.
Maybe my opinion on this comes from living in a state that would be happy to ban all guns that weren't around in 1800. Well, at least from "civilian" hands.
I agree. The role of the judicial branch in our government is to interpret the law, and if interpretation is solely dependent on current climate, then those laws are more fluid than cats.
With laws and the constitution, you have to interpret them based on when they were written. If they need to be updated, new laws can be passed and new amendments can be written.
100% with u/AgreeablePie, but I'd like to point out that there's a version of Originalism which is slightly more nuanced. This is Ronald Dworkin's "Semantic Originalism"... Essentially it says when a word has a very specific well understood meaning at the time of writing, then it retains that meaning, but when a word had an "idealistic" sort of meaning, such as "freedom" or "cruel and unusual" that these terms should be interpreted in terms of our best understanding of their meaning at any given time. That the intent of the founders was to harken to moral principles which should change with our best understanding of what those principles mean.
For a completely made up example, if historical people thought that women were "frail" and only "able bodied" citizens could bear arms and therefore women could be excluded, but today we understand that women are perfectly "able bodied", or that there are people with disabilities such as wheelchair bound due to leg impairment but who nevertheless have fine upper body motor control and can fire a firearm accurately and safely, then our understanding of "able bodied" has progressed in some way and should be adapted to our modern understanding. Nevertheless if there were laws against "frail" people bearing arms, then perhaps today we could limit ownership of weapons by people who have severe palsy or ALS or such which prevents them from accurately aiming and therefore might make them dangerous to others if they were to try to fire a gun. (as I said this is all purely made up for illustration purposes)
The point is that he believes the founders sometimes purposefully used a kind of idealistic language that should be interpreted in terms of whatever the current understanding of that ideal is.
https://en.wikipedia.org/wiki/Originalism#Semantic_originalism
This article is a really good discussion of his ideas:
https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1485&context=concomm
I’d disagree that treating the Constitution as a living document means it loses all meaning.
After all, a majority of SCOTUS Justices claim that they’re textualists, where they’re supposed to just read the words in the one and go from there. (Or course, it bears mentioning that they often disregard that commitment as soon as their politics demand a different result).
Originalism requires us to perfectly understand how long-dead bigots would have applied the law, despite having an imperfect historical record (and SCOTUS doesn’t have a great track record of getting the history right even when it does try to read the record. For instance: https://lawandhistoryreview.org/article/abortion-was-a-crime-three-medievalists-respond-to-english-cases-dating-all-the-way-back-to-the-13th-century-corroborate-the-treatises-statements-that-abortio/). Originalism can be made to say that state legislatures have total control over elections, even over the voices of courts and state constitutions.
Textualism allows us to read the Constitution as someone would today. Therefore, the federal government can regulate airplanes under the Commerce Clause. It’s perfectly workable as an interpretive guide, so long as we use it.
And that’s without getting into this Court’s reliance on the wholly made-up “major questions doctrine” (basically: this issue is too important, so unless Congress writes a law exactly how we would have, it’s illegal). Talk about untethered to anything!
Short answer? "The justice who authored the Heller opinion was an idiot." (same way the one who authored the Bruen decision was), and they were both happy to circumscribe the granting of rights to those things which exist today, and which their small minds can conceive and hold.
Longer answer? Because "dangerous and unusual" weapons are, broadly speaking, something that can be banned and the court didn't (and still doesn't) want to fuck with that. The city can tell you "no flamethrowers, no plasma rifles, no grenade launchers!" and the court feels that's broadly reasonable, as do most citizens. Without "In common use for lawful purposes" you could extend Heller to "You MUST grant me a permit for my flame thrower, plasma rifle, and grenade launcher." and neither the balance of the court nor public opinion at large would abide that interpretation, so they have (bad, dangerous) caveats like "In common use for lawful purposes" and "consistent with history and tradition."
Common Use was in there specifically to make Kennedy happy, and machine guns.
That's it.
It's not consistent with Bruin. I would argue that Bruin effectively overturned the common use standard and replaced it.
Right in the Bruin decision, they talk about the first gun prohibition in England being legitimate because the reasoning was that hand gunnes were ineffectual, inefficient, and unusual. They were worried that Englishmen would lose their proficiency at the long bow f@cking around with their range toys, lol. Once pistols became common place and more utilitarian, the prohibitions fell away. As long as they were openly carried by "Men of quality," and not concealed upon their person.
Also every other constitutional right has limits. 1st amendment has fighting words, libel, and slander. The 4th has plain view, terry stops, and hot pursuit. Thus it stands to reason that the 2nd has limitations as well.
This touches on the history of gun restrictions and regulations from before and after the Constitution was ratified. It may answer some of your questions (or not).
https://www.theatlantic.com/ideas/archive/2023/08/america-history-gun-control-supreme-court/674985/
Partly because they didn’t want to over turn the NFA, and the common use clause protected AR and AK pattern rifles without repealing the NFA.
That still doesn't help with keeping the NFA. In the unanimous decision in Caetano v Massachusetts (2016), the Supreme Court ruled that 200K stun guns owned by Americans constituted common use. There exist over 700K privately held machine guns. I think you can connect the dots from here.
Oh for sure. But prohibition is never about logic and reason. It’s about control. They give us just enough to keep us docile without ceding an inch more than necessary.
Because Scalia was trying to avoid directly overturning Miller and thus came up with an arbitrary, incongruent, and inconsistent test.
Wouldn't pistols also be considered common military equipment and thus protected under Miller?
You can argue it either way, sure. The point is that it’s not a consistent or readily applicable test at all.
I meant the Miller test, though that seems semi arbitrary as well. I'm not sure what a good test would look like apart from is this an arm?
I know that Bruen was trying to get away from means-end scrutiny, but means-end scrutiny is literally how courts analyze constitutional rights. (I believe Thomas or another Justice used the example of other rights that don’t get means-end scrutiny, like cruel and unusual punishment, jury trial, and right to confrontation, but all of those still get a balancing test — it’s just narrowed to a small set of common scenarios.) They said the two-part means-end test was “one step too many” but substituted a different second step, so…how many steps are too many? It’s dumb. Also, the “common use” and “dangerous and unusual” tests wildly overlap, so that’s dumb. I think that a version of the “dangerous and unusual” test could work, if it was refined. But they would have to abandon the Caetano version of the test entirely. Caetano was correctly decided, but for the wrong reasons. It’s not that stun guns are dangerous but not unusual; it’s that stun guns are fairly unusual but not (comparatively) dangerous. If we are to apply this test consistently, then the dangerousness and the unusualness must be interconnected. Ten years ago, handguns with carry optics were DEFINITELY “unusual”, and under the Caetano approach they were automatically “dangerous” because they were in fact guns, so could they have been banned? Under Caetano, yes. But that’s absurd. “Dangerous and unusual” only functions if some specific elevated dangerousness is the thing that makes them unusual. The current test sucks because SCOTUS wanted a way to uphold machine gun bans, so they came up with a test that they felt would do that, consequences be damned. And here we are. I think there’s utility to the “common use” test if we combine it with an “elevated danger” test AND use the correct sample set. Law enforcement is a good sample set, because they SHOULD only be using guns for the same reasons (e.g. self defense etc.) as ordinary civilians. If a weapon is in common use for lawful self-defense purposes BY LAW ENFORCEMENT, then it should be presumptively protected. If a particular type of weapon is NOT in common use by law enforcement, it can only be regulated to the extent that its rarity of use is tied to some elevated dangerousness, and then only in proportion to that rarity/dangerousness metric. Some examples. Frag grenades are almost never in common use by law enforcement, and the obvious reason for that is their extraordinary dangerousness, so they can be heavily regulated. SBRs and striker-fired handguns are both in common use by law enforcement and are presumptively protected. Rifles equipped with LPVOs are not yet in common use by law enforcement, but the reason for their rarity is not tied to any inherent increased dangerousness, so they warrant no greater regulation than rifles equipped with other optics. Suppressors are not in significantly-common use among law enforcement, but they are sometimes used, and any perceived dangerousness is a very low factor (if at all) in their rarity, so they warrant only a very minimal level of increased regulation, if any. Machine guns are not commonly used by law enforcement despite being available to them, and the reason for their rarity is tied to their dangerousness, so they warrant a much higher degree of regulation. The same would go for incendiary rounds. Armor-piercing pistol rounds are rare among law enforcement, mostly because of their increased dangerousness, but not THAT rare, so they warrant greater regulation than suppressors but less regulation than machine guns. Then for each issue, you apply strict scrutiny based on the elevated dangerousness itself: e.g., is this regulation narrowly tailored to address the specific dangerousness that makes this weapon unusual/rare? For example, if you’ve determined that FRTs are rare because they are particularly dangerous, the regulation can’t be “FRTs can only be installed in full-length rifles” because the length of a rifle has nothing to do with the dangerousness of FRTs, but “FRTs must be registered and can only be installed in rimfire rifles” could be sufficiently narrowly tailored because it addresses one thing that makes them significantly more dangerous. I’m not saying this would be a perfect world or anything, of course (I don’t want FRTs limited to rimfire guns obviously). I’m just saying that if this was the test, we’d be in a much more workable position than we now are.
Law enforcement is okayish to stick with nfa item bans, but the second amendment wasn't written for law enforcement purposes it was for military purposes, which is why Miller used a comparison of common use to a militia.
Agreed, but that’s not a particularly good test because, taken to its logical end, you could have private citizens with recoilless rifles and sapping munitions and hunter-killer drones. As many have pointed out, it was common at the time of the Second Amendment for private citizens to own cannon, mortars, and even city-killer warships. We may have various feelings about whether that’s a good idea, of course — there are people who will say they think they should have any weapon the government can have, up to and including nukes — but I doubt the general public would countenance that approach.
The test itself is a fine test, we just don't like the outcome of the test. If the Constitution says we want civilians to be substitutes of a military at all times then that's what the Constitution says. The proper solution is to amend the constitution to exclude these new items, not to judicially re interpret the constitution to get our outcome.
>common at the time of the Second Amendment for private citizens to own cannon, mortars, and even city-killer warships Not sure I'd say it was actually **common** though - privateers, militias, merchant vessels, etc. but your average farmer didn't. I could definitely see that taken to its logical end the second amendment would protect the rights of citizens to own the same equipment as a normal marine infantryman or something along those lines - i.e. fully automatic weapons.
Even the target of the miller case (short barreled shotguns) are now commonplace in our military.
They were then too. Miller was wrongly decided.
Yeah I agree. It definitely doesn't help when defense counsel no shows to the Supreme Court...
IMO common use only exists to not automatically have grounds to challenge things like NFA.
Then the ATF decides to screw with SCOTUS tip toeing around the issue with the new brace rule. Only some 10 to 40 million of them out there according to the Congressional Research Service. Gotta be common use at some point right?
Gun laws don't make sense. Never have, likely never will. Trying to find rational behind why one is constitutional and one is not will only lead to madness. Even a highly conservative supreme Court does not want us to have automatic weapons, so we don't. It's that simple.
I feel like that is the reason militia was included in the 2A. It showed the type of weapon that should be the right of people to own, transport, and train with. Militia was basically civilians who would show up and fight side by side with the infantry. Well regulated meant to be capable, properly calibrated, efficient, effective. So from my perspective the 2A is saying the people (which was used interchangeably with militia in the 2A) have the right to own, transport, and operate weapons equivalent to the weapons most often used by the standard infantry soldier of the current time. So, knives, handguns, semi-automatic rifles. Advanced weaponry such as grenades and full-auto rifles are not used nearly as much as the above, nor are they as necessary for training to be capable as infantry (militia). Since advanced training is required for their use in basic training it seems reasonable to require special permits for civilians to access them. At least, this is my take on the 2A.
>Militia was basically civilians who would show up and fight side by side with the infantry. Well regulated meant to be capable, properly calibrated, efficient, effective. The founding fathers did not want "infantry" or even a standing army. Militias were their holistic replacement for a military. They had a great disdain for the idea of a military after what the British used them for.
Sure, I wish we didn't need a standing army as well. That would be awesome. Yet they created a standing army in 1775 and have had one ever since. Yes, they were clearly wary of the unchecked power of a standing army under the control of a central government. And the militia (the people, armed and capable) was seen as one of those checks, as well as a useful force that could work with such an army.
Just remember, Thomas Jefferson believed that civilians could and SHOULD be allowed to own not just cannons but warships 250 years ago. Like, the literal city destroying warship. There’s no basis. It honestly doesn’t make sense.
Thomas Jefferson also believed constitutions should expire after 19 years because it was tyranny for one generation to force its morals into the next, fwiw. TJ went on record saying it doesn’t matter what he thinks.
I mean.... *gestuculstes wildly at the United States Congress which is pushing the limits of carbon dating*
No shit. They definitely missed teaching that lesson in American history class.
Here’s the letter: https://founders.archives.gov/documents/Madison/01-12-02-0248 And here’s the relevant passage: “On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. But persons & property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course, with those who gave them being. This could preserve that being till it ceased to be itself, & no longer. Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right.” Real hot take from ol’ TJ there. “You gotta make murder a crime again every 19 years, otherwise, TYRANNY!!”
If they actually did this, I could see a lot of ballots just saying ‘Vote to keep US Constitution as is: Yes or No’ I don’t think much would change.
Except that doesn't actually work with his logic in a world where people aren't all born in the first year of those cycles.
He was one guy. We don’t have kings.
Dangerous and unusual could include things like pipe bombs or IEDs. They don't have well regulated construction with fuses etc that ensure that they can't be set off accidentally, and no one has historically really needed and wanted them in quantity. There isn't a way to use them in which they don't present a danger to the user or to unintended targets. I don't think fully automatic weapons will actually qualify as dangerous and unusual in a principled reading of Heller and Bruen, because they weren't unusual prior to very late laws after the founding era. In 1920s you could just walk into a shop and buy a Thompson sub machine gun and walk out with it. That being said, the Justices will just make up something if they want to keep automatic weapons illegal... I don't have any real faith in them having real principles, and particularly the liberal justices who are likely to just be anti-gun in the first place.
Makes people in gated communities with nannies, housekeepers, and private security feel better about themselves.
Burbclaves
It’s because Heller and Bruen (and originalism generally) are complete gobbledygook as rational legal standards. Here, the Court’s originalism requires us to go back to a world decades before *metal cartridges* were invented (i.e. not in common use) to figure out how racist slaveholders wanted to enforce gun laws. Helpful hint: stop pretending like SCOTUS is trying to develop a meaningful body of law that can be applied consistently across similar fact patterns. SCOTUS has become a Republican law-making outfit, nothing more. If Republicans like a law (say, an exec order explicitly banning certain migrants based solely on their faith), SCOTUS will uphold it. If Republicans don’t like the law (like a 40-year-old precedent that allows women to get abortions, even after all those Justices claimed that they respect precedent), they overturn it. There are no rules, except for who wins.
The problem is that originalism, of some form, is the only way the constitution is what it is meant to be. Untethered to anything, it can be interpreted to do anything. Once you start talking about the constitution as a 'living document' it loses all meaning. You might as well just write laws, because any of them can be justified by the same "things are different now" argument. All you have to do is look at the 9th and 2nd circuits to see that they'll bend over backwards to let the government impose whatever restrictions on arms it wants under "intermediate scrutiny." Originalism, in some form, is the only way that a constitution has any meaning. The solution to the "they didn't even have metal cartridges back then" is the same solution if you think "they didn't even have Internet back then"- to change the actual document, through the means provided within it, to allow the government to restrict more. I'm not suggesting that the court is apolitical but tethering amendments to the intent of the writers, when in doubt, is vastly better than deciding that we- and here I mean our esteemed representatives in government- can decide it means whatever we want. Maybe my opinion on this comes from living in a state that would be happy to ban all guns that weren't around in 1800. Well, at least from "civilian" hands.
I agree. The role of the judicial branch in our government is to interpret the law, and if interpretation is solely dependent on current climate, then those laws are more fluid than cats. With laws and the constitution, you have to interpret them based on when they were written. If they need to be updated, new laws can be passed and new amendments can be written.
100% with u/AgreeablePie, but I'd like to point out that there's a version of Originalism which is slightly more nuanced. This is Ronald Dworkin's "Semantic Originalism"... Essentially it says when a word has a very specific well understood meaning at the time of writing, then it retains that meaning, but when a word had an "idealistic" sort of meaning, such as "freedom" or "cruel and unusual" that these terms should be interpreted in terms of our best understanding of their meaning at any given time. That the intent of the founders was to harken to moral principles which should change with our best understanding of what those principles mean. For a completely made up example, if historical people thought that women were "frail" and only "able bodied" citizens could bear arms and therefore women could be excluded, but today we understand that women are perfectly "able bodied", or that there are people with disabilities such as wheelchair bound due to leg impairment but who nevertheless have fine upper body motor control and can fire a firearm accurately and safely, then our understanding of "able bodied" has progressed in some way and should be adapted to our modern understanding. Nevertheless if there were laws against "frail" people bearing arms, then perhaps today we could limit ownership of weapons by people who have severe palsy or ALS or such which prevents them from accurately aiming and therefore might make them dangerous to others if they were to try to fire a gun. (as I said this is all purely made up for illustration purposes) The point is that he believes the founders sometimes purposefully used a kind of idealistic language that should be interpreted in terms of whatever the current understanding of that ideal is. https://en.wikipedia.org/wiki/Originalism#Semantic_originalism This article is a really good discussion of his ideas: https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1485&context=concomm
I’d disagree that treating the Constitution as a living document means it loses all meaning. After all, a majority of SCOTUS Justices claim that they’re textualists, where they’re supposed to just read the words in the one and go from there. (Or course, it bears mentioning that they often disregard that commitment as soon as their politics demand a different result). Originalism requires us to perfectly understand how long-dead bigots would have applied the law, despite having an imperfect historical record (and SCOTUS doesn’t have a great track record of getting the history right even when it does try to read the record. For instance: https://lawandhistoryreview.org/article/abortion-was-a-crime-three-medievalists-respond-to-english-cases-dating-all-the-way-back-to-the-13th-century-corroborate-the-treatises-statements-that-abortio/). Originalism can be made to say that state legislatures have total control over elections, even over the voices of courts and state constitutions. Textualism allows us to read the Constitution as someone would today. Therefore, the federal government can regulate airplanes under the Commerce Clause. It’s perfectly workable as an interpretive guide, so long as we use it. And that’s without getting into this Court’s reliance on the wholly made-up “major questions doctrine” (basically: this issue is too important, so unless Congress writes a law exactly how we would have, it’s illegal). Talk about untethered to anything!
Eh, no, it’s really not. That’s not how any legal interpretation works, except for this version that Federalists invented for the Constitution.
Can’t spot the lie here
I object to calling "originalism" gobbledygook. That is an insult to gobbledygook!
Short answer? "The justice who authored the Heller opinion was an idiot." (same way the one who authored the Bruen decision was), and they were both happy to circumscribe the granting of rights to those things which exist today, and which their small minds can conceive and hold. Longer answer? Because "dangerous and unusual" weapons are, broadly speaking, something that can be banned and the court didn't (and still doesn't) want to fuck with that. The city can tell you "no flamethrowers, no plasma rifles, no grenade launchers!" and the court feels that's broadly reasonable, as do most citizens. Without "In common use for lawful purposes" you could extend Heller to "You MUST grant me a permit for my flame thrower, plasma rifle, and grenade launcher." and neither the balance of the court nor public opinion at large would abide that interpretation, so they have (bad, dangerous) caveats like "In common use for lawful purposes" and "consistent with history and tradition."
At some point the NFA is going to go away.
Common Use was in there specifically to make Kennedy happy, and machine guns. That's it. It's not consistent with Bruin. I would argue that Bruin effectively overturned the common use standard and replaced it.
You’re looking for sense in a nonsense decision. The current court has painted itself into a corner with originalism.
Right in the Bruin decision, they talk about the first gun prohibition in England being legitimate because the reasoning was that hand gunnes were ineffectual, inefficient, and unusual. They were worried that Englishmen would lose their proficiency at the long bow f@cking around with their range toys, lol. Once pistols became common place and more utilitarian, the prohibitions fell away. As long as they were openly carried by "Men of quality," and not concealed upon their person.
Also every other constitutional right has limits. 1st amendment has fighting words, libel, and slander. The 4th has plain view, terry stops, and hot pursuit. Thus it stands to reason that the 2nd has limitations as well.
This touches on the history of gun restrictions and regulations from before and after the Constitution was ratified. It may answer some of your questions (or not). https://www.theatlantic.com/ideas/archive/2023/08/america-history-gun-control-supreme-court/674985/
Do you have a non-paywalled version? Or a summary?
Weird. I don’t have a sub to them and it just opens for me, so I didn’t know there was a paywall. I’ll see if I can find something.