Is a public-carry law only unconstitutional where "historical evidence clearly commands" that result?

A Harvard Law Review Note argues that judicial restraint is an "originalist value"

|The Volokh Conspiracy |

The Harvard Law Review published an unsigned student note on Young v. Hawaii.  (All student notes on HLR are unsigned). In that case, the Ninth Circuit declared unconstitutional Hawaii's prohibition on open-carry. Recently, the Court of Appeals granted rehearing en banc. That decision will likely be reversed.

The note argues that originalism requires something of a clear statement rule: unless constitutional history is "clear," then the court should defer to the democratic branches. The note explains:

Young's shortcomings point to a broader lesson about Second Amendment analysis: where balanced historical review fails to reveal a single public meaning, reading the record selectively risks subverting the objectives of originalism itself. Heller may have treated history as determinative in defining the right to self-defense within the home, but Justice Scalia was well aware that this approach has its limits. The "principal defect" of originalism, he explained, is that "historical research is always difficult and sometimes inconclusive. Such ambiguity, however, is not an invitation for courts to choose their preferred constitutional meaning; judges should instead proceed cautiously to resolve disputes in a manner consistent with broader originalist values….

Young's outcome is also at odds with the conception of originalism as a restraint on undue interference in the political domain. According to Justice Scalia, originalist analysis "intrudes less upon the democratic process" than other interpretive methods: courts are expected to safeguard rights grounded clearly in "constitutional history," while leaving other asserted rights to be "adopted or rejected" through ordinary politics. 69 Put differently, where history is "indeterminate . . . as to the specific question at hand," courts have "no basis for displacing . . . political decisions made by an imperfect representative democracy."70 Such restraint would have been warranted in Young, where the conduct at issue had long been regulated due to the pronounced threat to public safety.71 But the Young panel instead inserted itself into Hawaii's legislative process without a convincing justification for doing so, engaging in the exact type of judicial overreach that originalism was intended to avoid….

The emphasized sentence comes not from Justice Scalia, but from Michael Stokes Paulsen's 2006 article, How to Interpret the Constitution (and how not to).Here is the full passage from Paulsen's article:

Simply put: If the meaning of the words of the Constitution supplies a sufficiently determinate legal rule or standard applicable to the case at hand, that rule or standard must prevail over a contrary rule supplied by some other competing source of law (typically a state or federal statute, or an executive branch or agency action). That is because of the supremacy of the Constitution over other law.37 Thus, if the Constitution supplies a rule, that rule prevails. But if the meaning of the Constitution's language fails to provide such a rule or standard—if it is actually indeterminate (or under-determinate) as to the specific question at hand—then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).38 Folks legitimately might disagree as to when the original meaning produces a determinate answer, or what counts as sufficiently determinate to supply a constitutional rule appropriate for judges to apply to invalidate political decisions. But that should be the core of the enterprise.

The note and Paulsen use the word "indeterminate" in different fashions. The note suggests that if there is a debate, even a reasonable one over constitutional history, then courts must defer to the elected branches. Indeed, the note advocates for a standard that would apply in cases in which the history is much closer than in Young:

When courts encounter challenges to public-carry statutes, more deferential review ensures appropriate respect for the legislatures' prerogative,  discourages unwarranted restrictions on state police power, and leaves room for democratic debate on issues unfamiliar to the Founding generation. Simply put, unless historical evidence clearly commands otherwise, courts claiming fidelity to originalist values ought to defer to democratically enacted public-carry policies.

This standard–"clearly commands" is extremely demanding. Heller itself disproves the note's approach. Heller was a sharply divided 5-4 decision. According to the dissenters, the history was indisputably clear in favor of their position. Under the standard advanced in the note, D.C.'s firearm laws should have been upheld. But the regulations were declared unconstitutional.

Finally, I do not think Heller's critics would be willing to extend this clear statement rule to any other favored right under the Due Process Clause. History plays no role, whatsoever, in many of the Court's most significant decisions. As usual, originalists are held to a much higher standards than adherents of other modalities. Here, the HLR note tries to make that burden even greater. And once again, non-originalists dictate to originalists what "originalist values" are.

I hope the Supreme Court, in due course, can discuss the important interplay between originalism, judicial restraint, and a presumption of liberty.


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  1. “As usual, originalists are held to a much higher standards than adherents of other modalities.”

    One could argue that, in this case, originalists are being held to their own standards, and conspicuously fail to meet them. I always thought Heller was Scalia’s “pay back” for the Court’s decision endorsing the “so-called homosexual agenda”, as Scalia always called it. I thought it “interesting” that Scalia found every provision of the DC gun law to be unconstitutional, finding a right of self defense in the Constitution, where it had never before been observed, such right including the right to own a hand gun and the right not to have to use the types of trigger guard required under the DC law.

    1. They managed to find the power to kidnap people for growing or possessing agricultural products somewhere in the powers the Constitution granted to Congress.

      The self evident truth that individuals have the right to take necessary actions in response to unjust, lethal aggression upon their person or charges under their protection in the Constitution ought to be easy to find.

    2. Please. A typical liberal idea, that the 2nd Amendment is merely to protect militias controlled by governors and/or the President makes a total mockery of the subject.

      One of the main reasons we have a 2nd Amendment is to increase people’s safety from and power to resist a potentially tyrannical government. The liberal idea turns this on its head by locating the right not into the hands of We the People, but in the hands of the government itself. Which, if you ask me, is pretty twisted.

      It is quite clear that the reason for this move is similar to the reason for the Supreme Court’s (thankfully temporary) move in largely reading major parts of the 14th Amendment out of the Constitution after the reconstruction era. Th right to keep and bear arms is disliked by some people, just as the idea of extending rights to real equality to blacks used to be disliked by some people.

      1. Yes. It makes you wonder where on earth libtards might have gotten that crazy militia idea from. It clearly has nothing to do with either the 2nd amendment or the right to keep and bear arms…

        1. How can you form a militia if you can’t have or carry a gun? The idea is to form a viable resistance force to a government that would prefer one not exist, so they ban those things.

      2. One of the main reasons we have a 2nd Amendment is to increase people’s safety from and power to resist a potentially tyrannical government.

        I know some framers talked of this, but it’s perfectly clear that they were lying. The text of the Constitution, which contains an express prohbition against “levying war on the United States”, makes clear that there is absolutely no right to resist the US government even if it is tyrannical.

        The framers talked the way they did because they wanted what they did against Britain to be judged positively by historians. But they made damned sure the Constitution prohibited it from occurring again.

        1. It’s rather pointless to legally enshrine a right of rebellion, as opposed to a right to the means; Only a state that you shouldn’t properly rebel against would respect a right of rebellion, even if it was enshrined in the Constitution, a state that really ought face rebellion would just go ahead and violate the right anyway.

          So it really makes no difference to ban rebellion. Either you should properly enforce such a law, or you won’t care if it’s the law.

          A right to the means to rebellion, OTOH, behaves differently. A government that is not a fit subject for rebellion has no great need to fear a populace capable of it, almost everybody will have no interest in rebelling. So people may use the right when it is not needed, and be positioned to rebel when THAT is justified, and the government’s effort to take away the means of rebellion conveniently tells you when the time rebellion is justified has arrived.

          1. Not a right to rebellion exactly, but according to Joseph Story the right to keep and bear arms “offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

    3. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    4. There was Heller II and Heller III due to the licensing regime in D.C., the *Court* (not just Scalia) left those intact. All the said was unconstitutional was the storage law and that NEW licenses be granted.

      1. After McDonald, the Court went back to refusing 2nd amendment cases, as it had for nearly 80 years prior to Heller.

        1. Heller II and III were in the D.C. circuit I believe. This comment thread system is silly, but I was responding to a comment up thread that said that “Scalia” undid all of DC’s gun laws, which was untrue.

    5. I’ve argued previously that Self-Defense might be one of the clearest examples of a non-enumerated right. I’ve also sarcastically suggested that it comes from the penumbras and eminations of the Second Amendment. I personally think it is clearly a protected right (the dissent even thought so), but those who believe only enumerated rights are protected should have no problem with a state abolishing self-defense or even making it illegal to use certain weapons in self-defense.

      1. The right to self defense and RKBA come from Cruikshank and not the 2A.

      2. The right to keep and bear arms is a right to armed self defense as well as the political right to defend the laws against usurpation by the rulers. It would be damned silly to argue that the right to armed self defense does not presuppose the right to self defense. That would be akin to arguing that one has a right to publish his own opinions but does not have a right to hold his own opinions.

        1. And the Griswald court argued that the right against searches and seizures included a right to privacy in ones home. If we’re strictly enforcing only enumerated rights, there’s nothing in the Second Amendment that protects the use of firearms, just the keeping and bearing of them.

          1. You are conflating whether a right is enumerated with the scope of the right in question. You agree that the right to keep and bear arms is enumerated. You just cannot see that the right to keep and bear arms encompasses the use of such arms. Please see US v Miller which equates “keep and bear” with “possession and use”, or Aymette v TN which is cited in Miller, or any of the very many early state court decisions regarding the right to keep and bear arms.

  2. Would the authors of the note take the same view regarding other constitutional clauses, such as the Due Process Clause? Why only the 2nd Amendment?

    1. From the summary, I don’t think they’re originalists, they’re simply telling originalists what to think.

      1. ^^^^Precisely this

      2. RULE 4: “Make the enemy live up to its own book of rules.”

        If the rule is that every letter gets a reply, send 30,000 letters. You can kill them with this because no one can possibly obey all of their own rules. (This is a serious rule. The besieged entity’s very credibility and reputation is at stake, because if activists catch it lying or not living up to its commitments, they can continue to chip away at the damage.)

        1. Anonymous student who you know nothing about writes an analysis piece you don’t like.

          Proof he’s a hypocrite and probably super Alinsky.

          1. if he’s at Harvard Law, he likely is…

          2. Sarcastro : Proof he’s a hypocrite and probably super Alinsky.

            Just for the avoidance of doubt, are you expressing the view that Alinsky was a bad fellow ?

        2. Why is it that the only people who seem enamored with Alinsky are conservative commentators? I don’t think I’ve ever seen a self-professed liberal talk about him with any sort of depth or caring whatsoever.

          1. Alinsky did have the “interesting” idea of the shit-in. Now pretty much eliminated by airport security

          2. Hillary actually wrote her thesis on him…

            1. In 1969. Which is probably why conservatives won’t stop talking about him.

              1. Partly due to a large part of the left conspicuously following his playbook even if they’re not shouting his name while they do it.

                1. A playbook they don’t read. Unless you think they read it in secret? I mean he’s really become more of an expositor of what the right thinks the left is doing than anything else.

    2. Indeed. These same people would be reluctant indeed to base relevant laws on a study of the historical record of local traditions in favor of abortion

  3. This seems like quite the bizarre standard to apply. The cruel and unusual punishments standard would truly be confused by this standard. Electrocution had not been invented, but a slow electrocution to death via electrodes attached to the genitals is still both cruel and unusual.

    1. The standard is not bizarre at all. It was the prevailing standard for constitutional jurisprudence in this country for over a century. It’s simply the reasonable doubt test applied strictly. One of the earliest versions, from 1811:

      “[I]t has been assumed as a principle in constitutional construction by the Supreme Court of the United States, that an Act of the legislature is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt.”

      Com. v. Smith, 4 Bin. 117. Justice Chase, in 1796, refused to overturn legislation except “in a very clear case.” Ware v. Hylton 3 Dall. 171. Justice Patterson, 1800, required a “clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication.” Cooper v. Telfair, 4 Dall. 14. (“It is but a decent respect due to the . . . legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this court when that subject has called for its decision“. Ogden v. Saunders 12 Wheat. 213 (1827). “This declaration [against an act of Congress as unconstitutional] should never be made except in a clear case.” Sinking Fund Cases, 99 U.S. 700 (1878). I could go on and on. Check out 16 Pick. 87 (1834); Com. v. Five Cents Sav. Bk., 5 Allen, 428 (1862). Countless early state court decisions, too.

      At the turn of the 19th Century, James Bradley Thayer published The Origin and Scope of the American Doctrine of Constitutional Law in 1893, I think it found its way into the Harvard Law Review a few years later. I’ll post a link below.* He goes through the history, the cases, etc. in exhaustive detail and his article speaks for itself. By history’s standard, the novel view of judicial review is the one y’all are taking for granted, that courts should go out and aggressively seek bases for reversing legislation at any level.

      It’s not an arbitrary rule, either. The reasonable doubt test (link again, below)**, it itself an originalist concept rooted in constitutional history, starting first with Hamilton’s “irreconcilable variance” (not just any variance) in Federalist 78. The deference that the judiciary owed to the legislature is built into Article III as well (“under such Regulations as the Congress shall make.”).

      Although Thayerian restraint gave way to judicial supremacy, the shift was gradual. As Posner documented***, it had a rich tradition from Holmes to Brandeis to Frankfurter to Bickel. The problem, like many governmental problems, is one of expanding power. No institution can resist the temptation to expand its own forever, especially with the rise of constitutional theories, fucking modalities or some shit, Dworkin, Scalia’s textualism, living constitutionalism, etc. But there are still some Thayerians among us, see Judge Wilkinson.****

      To your specific point re: cruel and unusual punishments, you’re missing the point. It is not that you need historical evidence that a specific practice was prohibited to fall within the argument. Instead, the plaintiff needs only provide good evidence to prove that the ratifiers of the constitutional provision he’s invoked, actually intended the phrase “cruel and unusual” to extend a prohibition to the class of things he’s complaining about. If we know that flaying people alive was in the class, it doesn’t take a lot of argument to analogize to genital electrodes.

      1. NToJ: I applaud your footnoting, and am going to totally steal the format. Thanks!

        1. Surely you mean respectfully copy, not steal.

      2. The presumption of constitutionality can be affirmed in many ways, especially by reading the challenged statute in such a way that it doesn’t raise constitutional issues. It minimizes second-guessing of the legislative branches by assuming the legislative branches respect certain constitutional principles – unless the legislature specifically rejects those principles.

        1. I agree. One problem, however, is reading a statute in a way that actually rewrites it.

        2. Right. See the Posner article. Brandeis was the champion of constitutional avoidance. (Which is not to say he was perfect at it.)

    2. Judges have a bit of trouble with the 8th amendment, because they really don’t like to admit that it was aimed at THEM, not the legislature or executive.

      1. Indeed, much of the Bill of Rights aims at protecting the participants in judicial proceedings, banning abuses which judges had been known to commit in Olde England and in prerevolutionary America.

        1. (Not that I’m saying the legislature could approve cruel and unusual punishments, unfair trials, etc., but the historical culprits who offended against these principles were often judges)

          1. The imposition of “unusual” punishments is a constraint on judges, rather than the legislature, by definition. If it’s in a statute as the, or one of the, prescribed punishments, it’s not “unusual” – it’s the, or one of the, usual punishments for that crime. Even if it’s the first time anyone has been convicted of that particular offense, and so the first time the punisment has been imposed.

            It’s only when the judge departs from the prescribed punishment, or is dealing with common law rather than statutory offenses, that the punishment can become “unusual.”

            1. Exactly, the 8th amendment is there to keep judges from getting inventive.

              But try telling a judge that.

              1. Wait, you’re seriously arguing that there would be no Eighth Amendment violation for burning someone at the stake, breaking them on the wheel, or drawing and quartering them, so long as the legislature provided those punishments by statute? That’s seriously your argument?

                1. Correct. The 8th amendment does not prohibit punishments merely because they are cruel. Maybe we would prefer that it did, but it doesn’t.

                  1. Interestingly enough, in behavioral modification, and act must be both cruel and unusual to be punishment.
                    If it is not cruel, it is not perceived as punishment.
                    If it is not unusual, it is not perceived as punishment.

                  2. Conceding that that is one possible interpretation of the Eighth Amendment, why on earth would you choose that one when there’s another, equally as good interpretation, of the Eighth Amendment that would preclude such atrocities?

                    It’s the same type of question I once asked a judge during a hearing: Sometimes the law clearly and unambiguously mandates an unfair result, and if there’s no getting around it, then that’s the law. But when you have discretion to reach either a fair result or an unfair result, why would you exercise it to achieve an unfair result? Same issue here.

                    1. when there’s another, equally as good interpretation, of the Eighth Amendment that would preclude such atrocities?

                      Feel free to say what it is, and why it’s just as good.

                    2. Lee, that’s one’s easy. Just interpret “cruel and unusual” by today’s standards, not by the standards of 200 years ago. Would most people today consider burning at the stake both cruel and unusual? Absolutely.

                  3. Well that is a worthless amendment. Why even bother having it?

                    1. LTG, you have just identified the difference between an originalist and a living constitutionalist.

                      A living constitutionalist, like me, thinks there should be some relationship between the Constitution and the actual needs of today. Not the needs of 200 years ago, but the needs of today. And so constitutional interpretation should be less informed by the conditions of 200 years ago than by the conditions of today, so long as the interpretation still fits the text.

                      An originalist, on the other hand, doesn’t care how well a 200 year old document suits our needs today. Let the sky fall, let the apocalypse come, so long as we’re not reading anything into the text that James Madison didn’t intend.

                      It would be hilarious if they hadn’t actually managed to take control of much of the federal judiciary.

                    2. Your version of an originalist is cartoonish at my charitable best, and condescendingly stupid at worst.

                      An originalists says, “you don’t like the system, fine, change it by amendment or law where the constitution doesn’t preclude it.” Trust me, it’s happened enough, and big changes at that.

                      Do living constitutionalists have zero regard for the established rules and history, and to them is the rule of law is something to be mocked? They are like the bad egg from Willy Wonka, they want it, and they want it “now”. You would reject such an assertion, would you not?

                    3. mad_kalak, I’m interested in options that are actually politically feasible, not ones that are merely theoretically possible. It’s theoretically possible that I could win Powerball, but I’m not planning my retirement around it. It’s theoretically possible that there might be 2/3 of Congress and 3/4 of the states willing to repeal what I consider the worst features of the current Constitution (and its originalist interpretations), but I’m not going to bet the rent on that either.

                      For sake of argument, assume I’m right that at least some of the stuff in the Constitution really has outlived its usefulness, and some of it is actually causing damage to our polity. Your solution is to just live with it. My solution is to do what needs to be done to achieve a better result. Which fits with the distinction I drew between originalists and living constitutionalists.

                      Now, I’m not advocating that anything in the Constitution that really does have only one interpretation should be ignored. You can’t be president if you’re 18 and were born in Timbuktu. Wyoming really does get to cancel California in the Senate. Tax bills really do have to originate in the House. But if there are multiple plausible interpretations, I’m in favor of the one that produces the better result, whether it’s the interpretation James Madison would have favored or not.

                    4. @Krychek,

                      “A living constitutionalist, like me, thinks there should be some relationship between the Constitution and the actual needs of today.”

                      If your approach to “interpretation” of the Constitution is to factor in “the actual needs of today” (however defined), why bother interpreting at all? Why shouldn’t the law just be whatever “the actual needs of today” are?

                      “Let the sky fall, let the apocalypse come, so long as we’re not reading anything into the text that James Madison didn’t intend.”

                      This is a false choice. We’re talking about methods of interpretation, not governance. If any human is ever presented with the choice of the apocalypse on the one hand and the Constitution on the other, we know who the victim is going to be. SCOTUS has never been presented with that choice, though.

                    5. mad_kalak,

                      Why do you think that conservatives really like the originalist approach to the Second Amendment? The reason is probably because they want the amendment to have actual meaning in their lives. They don’t want to be “um actually’d” about well regulated militias that don’t exist

                      That’s often the same goal that living constitutionalists have: giving rights actual meaning and relevance to people, particularly where the text might lead a normal person to conclude that they have a right. Let’s look at some examples:

                      Eighth Amendment

                      “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

                      Now a normal person reading that with no knowledge of its history would probably assume that their government won’t subject them to a cruel punishment. Now, Brett comes along and goes “UM Actually: the original public meaning was that only applies to judges, so the rest of the government can do whatever they want. And even if they were bound somewhat no one thought that life prison sentences for shoplifting was a cruel punishment back then anyway. Oh and by the way it definitely didn’t require the executive branch to treat you in any particular way. So you don’t have a right not to be beaten in prison or protected from rape. But at least a judge can’t order you to the stocks!”

                      Thus through originalism, the amendment now has practically no meaning for the reader whatsoever, and they don’t have a right to be free from cruel and unusual punishment.

                      Sixth Amendment:

                      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…and to have the Assistance of Counsel for his defence”

                      Recently, Justices Thomas and Gorsuch attacked the premise of Gideon on originalist grounds: “Um, actually, this only means the government can’t stop you from having a lawyer. If you can’t afford one, you just have to sit there while government lawyers say and do things you don’t understand according to rules you don’t know or understand. This is what the right to a trial entails.”

                      The originalist approach makes this right pointless to the people actually caught up in the criminal justice system.

                      So, living constitutionalism often makes rights meaningful in a way originalism does not and cannot. A theory that often results in some incredibly worthless rights is not necessarily a great theory of constitutional interpretation and undermines the legitimacy of the document itself.

                    6. NtoJ, I did not say the needs of today are the only factor, or even the deciding factor. One still must interpret it in such a way as to not do violence to the words. I don’t care how well qualified a 26-year-old who wants to run for president may be, he can’t. Even if it means electing someone who will do a worse job than he would have.

                      I offered Lee a plausible interpretation of the Eighth Amendment — go with what we today consider cruel and unusual rather than what Thomas Jefferson would have considered cruel and unusual. There is nothing in the text itself to preclude that interpretation, and it achieves a better result. Both I, and originalists, are sticking to the text. I just think mine gets better results.

                    7. LTG, I like your approach a lot.

                    8. @Krychek,

                      “I did not say the needs of today are the only factor, or even the deciding factor.”

                      I’m asking why not? Why would you limit yourself to only 20% needs of today, rather than 100%? If your theory of interpretation entitles you to disregard the source by a little bit, why would it stop there? This is not a slippery slope argument, I’m trying to get a sense for what your theory of interpretation is, how you developed it, etc. Posnerian pragmatism is a theory that posits some discretion from the judge, but he limits it to a narrow subset of cases. That’s how he gets to something like 20%. But I know how he does it, I’m interested in how you do it.

                      “…go with what we today consider cruel and unusual rather than what Thomas Jefferson would have considered cruel and unusual.”

                      There’s an originalist argument for why the ratifiers intended that the meaning changes over time. But to remain originalist and a matter of interpretation, the condition is critical. You have to believe that’s what was intended. Do you?

                      My issue with follow the text unless it’s opaque, and then follow your heart, especially where constitutional interpretation is concerned, is that you’re upsetting the common law burden of proof and persuasion. If the intent of a law is opaque, the answer should be: rule against the party invoking it. That’s usually the plaintiff.

                      However, the argument in favor of some kind of pragmatism in the face of opaque laws is strongest where statutes are concerned. Statutes have been passed in a long legal tradition in our country with push-pull between the authors (legislators) and the interpreters (judges). We may be able to assume that a legislature today intended for a judge to exercise judgment. But that condition does not hold true for the Constitution, or any of its amendments until the 20th century. The world in which the Constitution, the Bill of Rights, and the Reconstruction Amendments were ratified was not one in which judges had a history of engaging with that particular kind of legislature. It’s just assertion of power.

                      None of which addresses the more run-of-the-mill judicial restraint arguments re: constitutions, namely that the effects are so large as to encourage restraint, the textual and originalist argument for judicial review of constitutional provisions is weak, etc.

                    9. NtoJ, constitutional litigation is frequently about trying to balance competing interests. And I can’t give an arbitrary percentage, 20% or 100%, for how often to disregard the sources, because interests will often balance differently, even when the same constitutional provision is at issue, from one fact pattern to another. What’s cruel and unusual in one circumstance may not be in another. Sure, there are cases at both extremes where the answer is obvious, but there are lots of other cases near the line when it isn’t.

                      And no, I don’t think what the framers intended is dispositive (it may have some persuasive value, but it doesn’t decide the case), for two reasons. First, as with interpreting a contract, what the parties meant is not as important as what the parties said. You go with the text, not with what you think they meant for the text to say. There were multiple framers and there’s no reason to believe they all agreed about what any particular provision meant.

                      But second, you would be hard pressed to find a group of people whose values are less reflective of current American values than the framers. Thomas Jefferson wanted to castrate homosexuals, for God’s sake. They were mostly white supremacists and misogynists, they had a radically different view of the role of the federal government than most Americans do today. Their values are not our values. So why should we be bound by the values of people who today would be at the political extremes?

                      And my real issue with your suggestion that if the text is opaque, the plaintiffs lose, is that, as Law Talking Guy points out, that leaves us with a system under which the government can basically treat people as badly as it wants. As with qualified immunity, unless you can find something in the text that is all-fours on point to the issue you’re raising, you really have no rights. Thanks but no thanks.

                2. Yes, I’m arguing that. The 8th amendment was intended to stop judges from getting inventive with torture, not to prevent legislatures from setting consistent sentencing guidelines, even if those sentences might seem cruel. To violate the 8th amendment, a punishment must be BOTH “cruel” AND “unusual”, at the same time.

                  1. So under your approach there is no constitutional limitation on the legislature sentencing shoplifters to being executed by burning at the stake?

              2. Please. I love it when a judge sentences a parent to be tethered to their out of control teen for a week.

      2. Well the text doesn’t say that. I don’t see why there would be an amendment that doesn’t let a judge get inventive but does let a legislature and executive get inventive.

        I mean under that interpretation the legislature could specifically permit rape as a punishment and empower executive agents to do it.

        Or they could authorize and construct extermination camps for shoplifters.

        If your legal interpretation permits those results, there is probably something wrong with that interpretation.

        1. If your legal interpretation permits those results, there is probably something wrong with that interpretation.

          Wonderful, you have saved the world several thousand pages of explanation of the principles of living constitutionalism.

          “Result first – interpretation afterward.”

          Red Queen jurisprudence.

          1. No.

            It’s interpretation first, then look at results and ask why these results are consistently terrible. The answer might be because the interpretive method is flawed.

            Originalist jurisprudence on the Fifth, Eighth, and Fourteenth Amendments would apparently permit ICE to set up extermination camps for undocumented immigrants.

            If your legal interpretation can’t prevent Holocaust II, then it’s probably not a very good legal interpretation.

            1. “Originalist jurisprudence on the Fifth, Eighth, and Fourteenth Amendments would apparently permit ICE to set up extermination camps for undocumented immigrants. ”

              Only if the legislature enacted a law making illegal immigration a capital crime, and then each illegal immigrant, (They generally do have documents: Fraudulent ones.) would be entitled to a jury trial prior to their execution.

              1. Except that under your theory the executive is not bound by the Eighth Amendment and undocumented immigrants lack due process rights under the Fifth and Fourteenth so there is nothing legally stopping ICE from deciding to summarily execute people.

        2. “I don’t see why there would be an amendment that doesn’t let a judge get inventive but does let a legislature and executive get inventive. ”

          Because it’s a legislature’s job to invent rules, and a judge’s job to enforce them. You don’t want those two powers in the same hands, that makes for despotism.

          1. So does letting the legislature invent anything it wants with regard to how humans are physically treated.

            Also: you keep ignoring the executive branch. If they’re not bound by the Eighth Amendment agents can literally do anything to anyone in their custody for any reason whatsoever without running into constitutional problems.

  4. “According to the dissenters, the history was indisputably clear in favor of their position.”

    What were they supposed to say? “History flatly contradicts our preferred policy, but it IS none the less our preferred policy, and should prevail on that basis alone.”?

    The fact is, none of the dissenters were originalists, so they didn’t give a bucket of warm spit whose side history was on. But they could hardly SAY that, in a high profile case, now, could they?

    Even living constitutionalists pretend to be originalists when the public is watching closely enough.

    1. As usual, Brett ascribes not just error, but bad faith, to those he disagrees with.

      1. As usual, I’ve been following this debate for decades, and the presumption of good faith is rebuttable. For the gun control movement, it stands long since rebutted.

        I read both opinions in Heller, and am well acquainted with the relevant historical materials. Scalia’s opinion was no gem, but Stevens’ dissent was a joke.

        Bottom line? It’s not an accident Bellesiles had to commit fraud to support his thesis. The facts were against him, just as they were against Stevens.

        1. There’s zero question the gun control movement is in bad faith. If it wasn’t, they’d be able to articulate a gun law they DON’T believe constitutional. Since they can’t, it’s bad faith.

          1. So do you believe then governor Reagan was RACIST when he rescinded open carry because scary black dudes made him pee pee his panties??

            1. I don’t consider Reagan a small government, individual liberty conservative, so I care about this trope as much as I care about the fact that GWB expanded Medicare or that Nixon created the EPA. That is, not at all.

              1. But what about Justice Thomas’ McDonald opinion:

                “The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense.”

                You said almost all gun control legislation was racist which is why our nation’s history of heavily regulating guns outside the home is illegitimate??

                1. Where did I say all gun control legislation was racist?

              1. Reagan signed the National Minimum Drinking Age Act (which was the first use of “highway funds” to commandeer state legislatures. I really have never understood why conservatives revere him the way they do.

  5. I find it difficult to believe that the author of the piece would apply the principles espoused therein to abortion.

    1. That doesn’t make the principles wrong!

      1. Because the principles are preferences dolled up to look like principles.

    2. You know literally nothing about the author beyond what’s said in the note. “Merely disagreeing with me is proof of bad faith,” is not a thing that a person worth listening to says.

    3. I would imagine that they would argue that abortion isn’t supported by originalist principles (which I think all would agree), but would suggest some other method of Constitutional interpretation supports the result. With open carry, I interpret their argument to say that it isn’t supported by originalist principles either. In that sense, they’re completely consistent.

  6. Originalists are rightly held to a higher standard, because the underlying premise is that we may not deviate from the past. That there is some moral obligation to disregard the preferences of humans today in favor of the imagined preferences of those who are now long dead.

    The alleged gain from originalism is greater legal certainty and an elimination of judicial discretion. It is supposed to advanced democratic/republican self-governance, by ensuring that constitutional change is limited to cases where We the People consent. It is supposed to create boundaries around judicial power. But as originalists add a political gloss to their supposedly originalist commitments (e.g. the presumption of liberty), it reveals a darker truth in the case of many originalists.

    And yes, it is fine for non-originalists to hold originalists to a “higher standard” and enforce internal logical consistency. There are two types of originalists. Respectable originalists who embrace originalism as a real constraint on judicial decision-making, not because of any hidden agenda to use this mode of thinking as a political weapon. And non-respectable originalists who are only “originalists” because they suspect that this will be a method for the judiciary to force conservative policies on a public that would otherwise have the freedom to govern themselves. The second type of originalist is fake; for them, originalism is merely a means to ensure their own political power over democratic majorities.

    1. “the imagined preferences of those who are now long dead”

      In many cases, these dead-guy “preferences” happen to correspond to the preferences of modern legislatures and voters. For example, when the Supreme Court tells states they must recognize same-sex marriage, they’re overriding both the wishes of the living *and* of those dead guys.

      And if there’s sometimes a conflict between what the living generation wants and what the dead guys wanted, sometimes the dead guys are right. Eg, supposing (to take a *completely imaginary* example) that the modern, hip, with-it, scientific, generation decides that it’s wrong for people accused of sex crimes against children to confront their child-accusers. Or in general that there are some criminal defendants so icky that procedural shortcuts are OK to convict them. Should the dead guys (or, rather, the laws they wrote and which stand still unrepealed) prevail over the hip and modern advocates of summary justice?

      1. Or suppose the living generation decides that it’s OK to mutilate people, not for conviction of a crime, but based on a prediction that they or their offspring *might* commit crimes, or be of substandard intelligence, or what have you? The dead guys thought that mutilation was a criminal punishment, and enforcing *their* preferences would deprive the modern generation of the “police power” of imposing “scientific” eugenics. So the Supreme Court upheld this mutilation-without-a-crime law by 8-1. Making you wonder why the Founders fussed so much over the protection of criminal defendants if you could simply mutilate people in a noncriminal proceeding.

      2. In many cases, these dead-guy “preferences” happen to correspond to the preferences of modern legislatures and voters. For example, when the Supreme Court tells states they must recognize same-sex marriage, they’re overriding both the wishes of the living *and* of those dead guys.

        The opinion of dead guys on SSM, even if we knew them, are irrelevant, as they were based on an inaccurate view of homosexuality.

        We don’t rely on 18th Century medicine.

        1. That is so silly to say. Acceptance of homosexuality is as much cultural as anything else. The Founders were well aware of how much the practice was tolerated in Ancient Greece and Rome, and not tolerated in Israel and Judea. I doubt they considered, say, the Emperor Hadrian and mentally ill.

          It’s actually only when “science” (TM) started to rise as a more important decider of things, that “science” was put to use to “scientifically” determine that gays were mentally ill based upon pre-existing cultural norms. i.e. it was backwash reasoning. This medical scientific establishment didn’t exist in the 18th century.

        2. I was responding to the claim that originalists

          “disregard the preferences of humans today in favor of the imagined preferences of those who are now long dead.”

          I gave an example where (in many states) the originalist interpretation backed up the preferences of “humans today” – namely declining to recognize same-sex marriage.

          1. Interestingly that’s not the preference anymore and hasn’t been for some years. I believe only two states still have majorities opposed.

        3. You also don’t rely on recent voter choices if they go against your preferred preferences. Democracy is only important as long as it gives you what you want and if it doesn’t it is to be tossed out using whatever excuse you can come up with to implement your preference by any means necessary.

          1. “You also don’t rely on recent voter choices if they go against your preferred preferences.”

            Nah. Trump is President, despite his repetitive disinclination to perform the job. But in terms of recent voter choices, the voters did put in D majority in the House… which Trump complained about as an attempted coup and an attempt to overturn the election. The idiot still thinks he was elected King, you can tell because when reporters ask him about some poor decision he’s made, he starts talking about his absolute rights as President. Somebody needs to tell him that being elected President confers precisely zero rights.

    2. ” That there is some moral obligation to disregard the preferences of humans today in favor of the imagined preferences of those who are now long dead.”

      I don’t think this quite gets it right. Originalists think there is a moral obligation to uphold the rules as they are, until they are formally changed. The best evidence that the preferences of humans today have changed is that humans today go through the formal process of changing the rules. The formal process is how you PROVE the preferences have actually changed!

      What originalists feel the moral obligation to disregard is the claim by SOME humans today to express the preferences of all relevant humans today, even though they can’t demonstrate through that best evidence that their claim has any merit.

      By analogy, you come up to me, the bank teller, and tell me that Joe wants me to give you his money, I’m not just going to take your word for what Joe wants. I’m going to ask you to show me the check Joe wrote you.

      Originalists say to the living constitutionalist: “Show me the check.”

      1. Brett:

        As a test for your thesis, ask yourself this question. Did the Constitution take a super majority of society to adopt it?

        No. It took a super majority of state constitutional conventions, but each convention only required a simple majority of delegates to say yes. That is, not even the agreement of those representing an absolute majority of voters was needed for the Constitution to go into effect, but only those representing a simple majority in nine out of the thirteen original states. Of course, once the Constitution was ratified by nine, the pressure on the other four would be and was so immense that you have to ask whether it was completely a voluntary choice after that.

        An Article V constitutional amendment, by contrast, requires the agreement of two-thirds of BOTH houses of Congress. Such representatives would represent not a mere minority of society, like the minimum number of delegates to the ratifying conventions needed to ratify the Constitution, but the consent of legislators representing a substantial super majority of voters. (There is an alternative and possibly more democratic route via three-fourths of the state legislatures, but that triggers a new constitutional convention — which is potentially dangerous because it could easily get out of control — not the more conservative and plausible incremental and humble amendment.)

        The end result. The Constitution is much harder to amend that it was to adopt in the first place. Those who framed the Constitution had much more practical power to influence its contents, for good and bad, than we do today.

        I can certainly respect sincere originalists even though, for the reason I give above, I am not one. But, at the same time, for a significant number, originalism is a stalking horse by those who imagine that originalism tips the scale towards what their political preferences. For these people, it is not a matter of principle, but simply a raw power play.

        By the way, there is not a single word in the Constitution itself that requires originalism or any other methodology to be employed. And even more ironically, if such a methodology (as rigidly defined by some) had been applied in Britain, many of our most fundamental rights as reflected in the Bill of Rights would have never come to be. These rights were, after all, innovations that arose in their own time from the courts in response to perceived abuses of power.

        I could call myself an originalist in the following sense. I still believe that courts have a role in recognizing and expanding fundamental human rights, using the same methodology that was used in Britain and which resulted in the recognition of many of the fundamental rights found in the Declaration of Independence and the Bill of Rights. The Ninth Amendment implies that such unenumerated rights cannot be denied to exist. I do not see how one can fundamentally reconcile an originalist methodology with the text of the Ninth Amendment. If one privileges only that which is written, how is that not denying and disparaging rights that are not enumerated? Doesn’t privileging only that which is written actually contradict the very written text that one is claiming to uphold???

        1. The living-constitution approach hasn’t consistently expanded liberty. It has had many liberty-restricting side-effects, like letting the federal government use “interstate commerce” to lock up people based on what they grow on their own property for their own use. Or letting the government increase a criminal’s sentence by pretending to use a civil-commitment procedure. Or allowing “juries” of less than 12 members (minorities hardest hit). Etc.

          As for the 9th Amendment, if we go by the original understanding, the people thought they were preserving *pre-existing* liberties, not giving courts a mandate to invent new ones. So a right invented after the 9th Amendment wouldn’t really qualify as a 9th Amendment right, it would have to be tracked back to the time of that amendment and found to be a recognized liberty.

          The English courts gave some good decisions in favor of liberty, but for every Bushell’s Case or Entick v. Carrington, there was a Dean of St. Asaph’s Case which had to be overruled by Parliament in favor of liberty. In all these situations, Parliament and the courts claimed merely to be standing up for traditional English liberties, not making up new rules.

          1. Eddy:

            The famous English cases that are the precursors of many of rights in our Bill of Rights recognized new rights in their time, rather than merely “pre-existing liberties.” Every “pre-existing liberty” had a time in where it was not acknowledged to exist as such and had to be “invented” or “recognized.”

            So, if your methodology had been followed then, the Bill of Rights would not even exist. Indeed, the basis for the American Revolution (“no taxation without representation”) would not even exist. Our entire country is based on the demanded recognition of new rights, not merely pre-existing rights.

            You assert: “the people thought they were preserving *pre-existing* liberties, not giving courts a mandate to invent new ones”

            What ACTUAL EVIDENCE do you have for this assertion? Nothing in the text of the Ninth Amendment supports this view. So, you must be either “inventing” this assertion yourself (which would indeed be ironic if you are inclined to criticize others for “inventing” rights) or you must be some unmentioned source of support for it. If you do have support for this other than an insistence that you think this is the way it should be (which is nothing more than a political preference), please feel free to share.

            Against this idea is the entirety of English legal tradition where new rights, including the rights in our Bill of Rights came to be recognized (or, more pejoratively, “invented”) by English courts. Shouldn’t such a radical departure from the very methodology by which recognized rights came to be have explicit support? Was not the American Revolution itself fought based on rights that were not recognized previously?

            There is NOTHING in the text of the Constitution that says that the particular rights recognized at the time were the only rights that could be recognized in the future absent a constitutional amendment.

            One strange implication of your idea is that the rights of individuals could progress under a monarchy, but would seem to be frozen in place in our republic. This would seem to imply that, with the progress of time, the fundamental human rights of an individual would tend to progress to be safer under an English monarch than in our republic. It is hard to believe that any framer or any ratifier or any person advocating for the Constitution intended such a perverse outcome.

            The ball is in your court. What ACTUAL EVIDENCE do you have for your counter-intuitive assertion that rights were frozen in place by the Constitution? It certainly does not say this in the text ratified by We the People. It does not say that in the Bill of Rights which was proposed by Congress and ratified by the states. Where does it say that???

            1. “rights *retained* by the people.”

              “Was not the American Revolution itself fought based on rights that were not recognized previously?”

              Well, let’s see… going through the rights which the Declaration of Independence accused George III of violating…rights which belonged to English people *in England* and which Americans claimed belonged to them in America (not too much of a stretch given the common heritage and the various guarantees of English rights to American settlers):

              no taxation without representation…recognized as a principle in England way before the American Revolution…indeed going back to the Middle Ages and the Parliament.

              Trial by jury in the place the crime was committed … yes, previously recognized in England.

              the right of the people to be represented in the legislature…again, traceable back to the Middle Ages.

              Judicial independence…formally established by statute in the Act of Settlement, 1701.

              Standing armies in peacetime require the consent of the legislature…traces back to the English Declaration of Rights, 1689.

              “the free system of English laws” – obviously derived from England

              the complaint about George III “taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments” – obviously based on taking away rights previously enjoyed.

              As for the rest of your comment, I hope someone else can analyze it, interpret it, and give an answer.

              Have a nice day!

              1. Eddy:

                You are completely dodging the point. Look at English history. The methodology was at time t1 a right was not recognized. And often, there was a court decision recognizing the right at time t2. Every right had a time at which it wasn’t recognized and a time in which it was. This was an evolutionary process. You are, in essence, asserting that the adoption of the Constitution put an end to this longstanding English practice without which the rights (which existed at the time of the American revolution but not throughout all of English legal history) would never have came to be. If the English had applied the same standards to their own practices, many of the rights in the Bill of Rights would never have come to be and the principles which were the basis for the American revolution would hot have come to be.

                You are asserting, without ANY textual support that the adoption of the Constitution froze this process in place.

                By the way, the English Bill of Rights applied only AGAINST THE KING. But the American revolutionaries also resisted the prerogatives of parliament. This itself is an example of the evolution of rights which you would like to reject in support of your political program.

                The word “retained” in the 9th Amendment is about who possesses the rights (the People), it does not imply that new rights may not be recognized by the judiciary and thus become likewise retained by the People.

                You are EXACTLY LIKE one of the people who wants to read the 2nd Amendment out of the Constitution. You are reading the 9th Amendment as decreasing the individual rights by eliminating the possibility of recognition, when the clear intention of the amendment is to secure rights rather than diminish them. This is an actively perverse reading. The point of the militia clause in the 2nd Amendment was not to transform an individual right into a collective right, but emphasize the importance of militias as a substitute for a standing army with the overall goal of allowing the arms of the People to be used to defend liberty from tyrannical government. Just as the reading of many liberals of the 2nd Amendment is twisted and perverted by straining to read the amendment as a right for government institutions controlled by the governor or the President, the same can be said of your reading of the 9th. Instead of protecting rights, you would interpret the 9th as the ultimate limit on rights.

                I think your approach is antithetical to history and political motivated. Chances are, you are just upset because you disagree with one of the rights recognized by our judiciary. For example, you are probably angry about Roe v. Wade or something like this. And your disappointment is driving your entire approach to interpretation.

                You are most likely the sort of unprincipled originalist of which I was speaking earlier. You have only selected an originalist approach because you prefer the political outcomes you imagine it would tend to produce.

                1. “the evolution of rights which you would like to reject in support of your political program”

                  “I think your approach is antithetical to history and political motivated.”

                  “You have only selected an originalist approach because you prefer the political outcomes you imagine it would tend to produce.”

                  Ah, you profess to be a mind-reader. Have a nice day, Karnak the Magnificent. 🙂

                  1. You still haven’t dealt with the fact that rights in England were established by the judiciary. But you claim the adoption of the Constitution ended this possibility in the United States.

                    You have had an opportunity to provide evidence for your position. Instead, you tried to change the subject, bizarrely taking a particular point in time and asserting that all rights recognized at that time were previously recognized (this is merely a tautology) instead of acknowledging that there was a process, where some rights came into existence or were expanded due to the judiciary.

                    This was clearly a dodge. Maybe you think people won’t notice when you dodge instead of forthrightly address the issue on the table. Or maybe you are so confused in your thinking that you thought your tautology addressed anything.

                    In any case, the best conclusion from your dodge of the issue and your failure to produce evidence for your position is that most likely you have formed your position based on you preferences, not external evidence.

                    It doesn’t take a mind-reader to draw that probabilistic conclusion.

                    1. Hmmm…what insidious motive can I have for not fully engaging you and your baseless insults? Obviously it’s a conspiracy. Probably involving the reverse vampires.

                    2. “Hmmm…what insidious motive can I have for not fully engaging you and your baseless insults?”

                      Didn’t understand them seems most likely.

                    3. Well, you have to admit that you and David Welker are high-powered intellectuals whose complex ideas are beyond my ken. And beyond my Barbie, as well.

                      You deal in subtle mysteries which soar above me like a great eagle in the sky.

                      You have understanding of matters beyond the comprehension of ordinary mortals – where a normal person reads your remarks and sees a bunch of insults, a person with higher consciousness, looking with the eyes of faith, sees an argument with irrefutable logic.

                      I wonder if there’s any result of your living-constitutionalist analysis which produces a result you don’t like. I mean, you can cite the part about two Senators per state, but I was thinking more about issues which are subject to actual legal debate. In these interpretive controversies, when do you come up with a particular despite the fact that it doesn’t match your policy preferences?

            2. “The famous English cases that are the precursors of many of rights in our Bill of Rights recognized new rights in their time, rather than merely ‘pre-existing liberties.’ Every ‘pre-existing liberty’ had a time in where it was not acknowledged to exist as such and had to be ‘invented’ or ‘recognized.'”

              Under the “natural law” theory, laws are not made by men but are divinely pre-ordained and just waiting to be discovered. Of course, the wise forefathers who discovered them didn’t necessarily work them out correctly because they were subject to subjective biases of their own. That’s how you get the franchise for black men fought over at great loss of life, without anyone asking why female persons shouldn’t get the franchise.
              Also you get people who generally argue that government ought to have little to no power over individuals, except for deciding who they get to choose from when they want to get married or whether or not they should carry children, in which case the government should outlaw the the position they don’t support.

              1. James Pollock:

                Right. And the idea that we Americans intended to retain the natural rights tradition we inherited from England is even found in the Declaration of Independence: “When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them.”

                Here, we have references to the laws of nature.

                But even if one does not embrace natural law theory, it is a historical fact that judges in Britain had a role in recognizing (natural law theory) and/or inventing (positivism) rights through a long-established tradition of judicial reasoning.

                Whether you see the Constitution under a natural law or positivist lens, this historical tradition is relevant since if the Constitution doesn’t specifically speak to a new role for judges, then the document seems to imply that judges ought to continue to fulfill the same role they did before.

                Or to use Brett’s analogy, if under our legal tradition judges used the board to play chess, then after the adoption of the Constitution, they ought to continue to use the board to play chess absent some sort of affirmative statement to the contrary.

                1. “Here, we have references to the laws of nature.”

                  The thing is, the laws of nature have little to do with law. Nature, red in tooth and claw, has no provision for ownership of property, except if you can take it, it’s yours. Pretending to discover law where the benevolent deity has placed it for you is just foolish. Government comes from the consent of the governed is a modern invention and it’s conceptually inconsistent with “natural law”

                  1. You do not have to be a natural law theorist to see that judges had a role in establishing rights before the Constitution, though. If you are a positivist, the best interpretation of the Constitution (as a positive enactment) is that it continued the tradition by which new rights could be recognized by the judiciary, using judicial reasoning, unless it says otherwise.

                    This role is particularly suited to the judiciary since this is the branch of government that actually applies the law to individuals with finality. As such, it is in a better position to judge when an abstract principle of law adopted by a legislature must require a concrete exception in the form of an individual right.

                    The move from natural law to positivism in this sense is a matter of rhetoric. A natural law theorist would say that the judiciary, in recognizing new rights is “discovering” rights while a positivist would say that in recognizing new rights they are “constructing” rights. But neither can deny that, as a matter of history, the judiciary in England came to recognize new rights. Whether you characterize it as a natural law theories or a positivist would, there is no denying that the judiciary recognized new fundamental human rights under the English tradition we inherited and that there is no indication in the Constitution of a desire to change this role. Indeed, that the traditional role of the judiciary is largely assumed by the Constitution seems to be shown by the very brevity of Article III. Unlike Congress under Article I (which did not have all of the traditional prerogatives of parliament), Article III does not specify a new role for the judiciary when it has jurisdiction.

        2. “By the way, there is not a single word in the Constitution itself that requires originalism or any other methodology to be employed.”

          There’s not one word in the rules of chess that say you have to follow the rules of chess, either. There’s no rule that says you can’t decide all your pawns are actually super-queens that can make multiple moves in one turn. The rules of chess literally say nothing about super-queens, and their available moves!

          You can always play these sort of logic games to break a set of rules, rule sets are logically precluded from being closed and self-sufficient. (See Godel for the proof of that.) Maybe the Constitution isn’t written in English. (It doesn’t say it is!) Maybe it’s really written in quasi-English, that spells words the same way, but they have whatever meaning you feel like giving them.

          What does the oath to uphold and defend the Constitution mean? I think it’s a promise not to play these freaking logic games. Start playing these kinds of games, and you’ve forfeited any claim to the position within the rules you purport to be occupying.

          You can’t take the chess board, dash it to the ground, get your opponent in a full Nelson, and then say, “The rules of chess say it’s my turn, you can’t move until I’m done choking you out!”

          But that’s what living constitutionalists do.

          1. “There’s not one word in the rules of chess that say you have to follow the rules of chess, either.”

            The fun part of your argument is that you’re assuming there’s a “rules of chess” that’s the same for everyone. Hint: There’s a reason why chess competitions have to apell out what their competition rules are.

          2. You seem frustrated by the basic facts.

            In the absence of clear rules of interpretation in the Constitution itself, why shouldn’t judges continue the interpretative traditions inherited from Britain, where judges had an undeniable historical role in establishing new rights? Including some of the rights recognized in the Bill of Rights itself?

            You say the rules of the game are implied and need not spoken.

            And you say that the game we are playing is chess. But if that is right, I would respond as follow. If we inherited the game of chess from the British, why do originalists insist that we are now to use the board to play checkers?

            We should unambiguously recognize that it is originalists, not those who believe that the judiciary has a role in recognizing new rights, that are the ones trying to change the rules of the game midway through.

            Unless one can point to actual evidence that the adoption of the Constitution changed the role of the judiciary in this respect, your chess analogy suggests that they should play the same role they inherited. Perhaps the real originalists are actually the so-called living constitutionalists who think judges are supposed to play the role they did originally, rather than a new role. If, as you say, we inherited the rules of the chess from the British, why do you now insist we play checkers instead?

    3. It’s not the preferences of dead guys, it’s trying to figure out the meaning of the words on a contract that, because it turned out to be long lasting, outlived its authors (as its authors hoped would be the case).

      1. “It’s not the preferences of dead guys, it’s trying to figure out the meaning of the words on a contract that, because it turned out to be long lasting, outlived its authors (as its authors hoped would be the case).”

        As you wish. Now go on to explain why a contract that I wasn’t a party to is binding on me…

        1. How does the Constitution bind you…?

    4. The alleged gain from originalism is greater legal certainty and an elimination of judicial discretion.

      The gain, and it isn’t alleged, but born of long, sorry human history, is cutting off one way the powerful gain power: by simply asserting it.

      The Constitution has a way to increase government’s power: amendment, which requires supermajority, which makes simple assertion of new powers have to jump through a hoop well-pondered by The People.

      1. But as stated above, the adoption of the Constitution not only did not require the consent of delegates representing a supermajority of voters, but only a minority of voters. (All it took was delegates representing a simple majority in 9 out of 13 states to ratify the Constitution, that is, the consent of delegates representing a minority of voters.)

        By what logic can either a mere minority of voters or a simple majority of voters then require a supermajority of voters to later change their decisions?

        There is nothing in the Constitution that says the only means of constitutional change is constitutional amendment. All must agree that it is one mechanism by which constitutional change can happen. But, it does not logically follow that it must be the only one, does it?

  7. political decisions made by an imperfect democracy…

    I don’t think the writers would necessarily put abortion restrictions or laws restricting marriage to a man or woman in that same bucket would they?

    1. You have zero information about the writer.

      1. … or much of anything else.

      2. One requires little information to predict hypocrites in this day and age.

    2. Increasing rights, by discovering as important unenumerated rights, is fine with the design of the Constitution. This part of “living constutionalism” is A-Ok.

      Increasing government power, by discovering squirrely reasoning that transparently contradicts long-term understanding of the power granted to government, by The People, is not fine with the design of the Constitution, which seeks to gate new power behind well-pondered changes agreed to by The People and the states.

      The former increases freedom. The latter decreases it.

  8. “We hold these truths to be self-evident…” was a pretty squishy beginning to the whole sordid affair, and it went downhill thereafter. No time like the present for those with superior aims to sort things out.

    1. 1) It *was* squishy, considering a slaveholder was writing about all men being equal. Doesn’t make it not inspiring, but blind respect is hardly respect at all.

      2) I get your sarcasm, but Brett and Eddy have much better arguments for originalism than talismanic worship of the Founders.

      3) Not that I agree with those arguments, but I also disagree with the note, which hearkens back to times when rights were not so judicially protected.

  9. Heller may have treated history as determinative in defining the right to self-defense within the home, but Justice Scalia was well aware that this approach has its limits. The “principal defect” of originalism, he explained, is that “historical research is always difficult and sometimes inconclusive.

    For Scalia, historical research was especially difficult. He would have done better to take his own counsel, and leave it inconclusive.

    Historical research was beyond Scalia’s expertise. Heller shows that Scalia had no notion that standards for historical research even exist, let alone what they are. And of course, the notion of history as a constraint on law—the very core of originalist theory—becomes gobbledygook if lawyers and judges continue unwilling to let a constraining influence from history take effect.

    Until judges presuming to issue originalist opinions do so with deference to professional historians, that will not happen. Whenever originalism becomes a salient consideration, historians—never lawyers and judges—are the best-evidence experts regarding the periods and historical subject matter under review. That is a fact. Until it becomes also a legal norm, actual constraint will be no part of so-called originalist practice.

    I hope the Supreme Court, in due course, can discuss the important interplay between originalism, judicial restraint, and a presumption of liberty.

    How would a Supreme Court which knows nothing of history accomplish that? I suppose Blackman thinks it will be done by supreme rumination. But let’s unpack Blackman’s hope a bit, from the vantage point of a truly historical originalism.

    Note, first of all, that in Blackman’s wish, “history,” has incongruously vanished from the “interplay.” It is not mentioned. That is telling. The absence disappears any chance of distinguishing legal history from academic history, with an eye to discerning which of those very different approaches should govern Blackman’s “interplay,” and to what extent.

    We must suppose that Blackman, tacitly, presumes legal history all the way down. He shows no inkling that as you approach more closely to the inception of America’s legal history—at the Constitutional Convention’s momentous re-conception—legal history runs out of authority. A constitutional decree is law beginning from scratch. There is no prior legal history that really applies, and none that explains the Constitution itself. Retrospective legal history becomes fraught.

    Note that originalism, as a theory based on the notion of identifying, understanding, and analyzing such moments of legal inception, must always be on guard against the impulse to reason backward—to take subsequent developments as evidence of prior intent. To take as historical guidance for constitutional questions legal occurrences which post-date those questions, is a fundamental error in historical analysis. Time’s arrow points only forward. Causes do not post-date their effects.

    It is logical error to presume historical reasoning can start with legal practices and occurrences subsequent to the constitutional convention, and reason from those to discover what the constitution originally meant. Yet doing that is the very method of much so-called legal history. Especially with the practice of originalism, that has been exactly the style of, “history,” at work. To see it, check out Heller. Note how many of Scalia’s references purporting to show the meaning of the Constitution actually post-date the convention and ratification. Scalia may have had a valid claim to tell what the Constitution came to mean, but that is the opposite of what his appeal to, “originalism,” as a source of constraint, implied.

    To avoid those errors, academic history has to take over. Its analytical methods are not retrospective. Instead, academic historians practice a discipline of excluding from consideration everything which the people of the time and place under consideration had not yet experienced, and could not have known. Mastery of that technique for a particular place and time is a great part of the education of an academic historian. It is laborious. The ability to do it is acquired only after long study of original records pertaining to particular times, particular places, and particular people. It involves the historian giving himself, through study, the same education, from the same materials, that a well-educated person from that time and place might have had—and then applying the discipline to think nothing else—and especially to exclude from consideration every experience, discovery, and occurrence subsequent to the dates in question.

    It is unsurprising that few if any in the legal community—with their own specialized demands to tend to—do that. It is surprising that so many of them seem to think they can, or, perhaps, that it does not matter. After all, we know what the words mean, right?

    For a final dollop of originalist irony, Blackman uses “liberty,” not in any originalist sense, but in a modernist one, probably without recognizing he is doing it. Likely, he takes for granted that a 20th century libertarian notion of “liberty,” is rooted in founding era usage. It is not.

    The founders did indeed entertain notions of civil liberties, and sometimes discussed them. When they did, context makes clear what was meant. Far more often, almost always when the word was used in a context of founding era governance, “liberty” was used to connote self-government by popular sovereignty, under majoritarian principles. When the word was used more narrowly, it tended to mean specifically representation in the counsels of government. Of course, those meanings are at odds with 20th-century libertarian ideology, and thus almost invariably misconstrued by libertarians, and many others too.

    To confirm what I say, and experience effects implied, readers have only to turn to Madison’s famed, Federalist 10, and apply that non-libertarian interpretation I mention, every time they see the word, “liberty.” Failure to understand what Madison meant by “liberty,” has been the source of considerable confusion with regard to the meaning of that essay. Experiencing the disappearance of that confusion as the correct interpretation takes effect is like seeing an encrypted document anew, after the key has been applied.

    1. Suggesting we leave historical analysis to the historians seems like a good idea…

      … but which historians?

      Do I get to choose?

      1. Stephen chooses Bellesiles. Why not, professional historians are trustworthy, and he’s one.

        Look, Stephen, leaving it up to the academic historians is just a non-starter. That’s just a move by the left to lock in a win; Academic history is the most politically captured discipline in all of academia, with the possible exception of gender studies.

        1. Bellesiles. The all-purpose argument.

          As to which historians to choose, let’s start by recognizing that we need real historians, not the historical imaginings of judges.

          The note cites Scalia:

          The “principal defect” of originalism, he explained, is that “historical research is always difficult and sometimes inconclusive.

          And especially difficult, and highly prone to subjective interpretation, when carried out by judicial ideologues like Scalia.

          Academic history is the most politically captured discipline in all of academia, with the possible exception of gender studies.

          Really? You know this how? Bellesiles again? Time to come up with a new bogeyman.

          1. Bellesiles. He’s not fictional. You don’t like that he got caught, you don’t like that we notice that he got his award AFTER he got caught, you don’t like that we’re allowed to take into account what it demonstrated about the history profession. Doesn’t matter that you don’t like it.

            How do I know? Because people actually do research on this sort of thing.

            1. As I’ve mentioned to you before: you do not understand the historical profession at all. Do you even know any historians? Or read books on historiography or methodology? I mean you are certainly not in the archives and mastering the literature in a sub-field.

              The historical profession has been grappling with the Bellesiles debacle for YEARS. He’s talked about in every undergraduate and graduate history methods class out there.

              And other Bellesiles clear academic misconduct, you never have any other examples of historians behaving in this way. You just don’t like their conclusions. And again you have a limited basis for criticizing those conclusions because you’re not doing professional history on the reg.

              The reason you can criticize Bellesiles with authority, is because other people did the hard work of professional history to reach those conclusions.

              Once you’ve come up with an article based on your own personal primary source research that is grounded in the previous literature about the event or period, your claims about history can be taken seriously. Until then, I will trust the opinions of the people who actually do history for a living.

              1. And other Bellesiles clear academic misconduct, you never have any other examples of historians behaving in this way.

                They all behave that way more or less. Not many fabricate facts like Bellesiles but that’s because they don’t have to in order to advance their priors. I majored in history with an emphasis on historiography and my takeaway was that there are no facts and no events, it’s all interpretation.

                1. Can somebody tell me in a sentence or two who this Bellesiles is?

                  1. Might be a bit longer than two sentences but I’ll keep it short.

                    Michael Bellesiles was a historian who wrote a book in the early 2000s called Arming America, in which he contended that records at the time of America’s founding showed that gun ownership was not very widespread among Americans. This supposedly had implications for what the meaning of the Second Amendment was. He won a bunch of awards for it. Turns out: a lot of his research was bad or fake. He got called out and was drummed from the historical profession.

                    Despite the drumming out and the traditional introspection of the historical profession who have been dealing with what went wrong with him for over 15 years, conservatives like Brett use Bellesiles as an example for why no one can trust anything U.S. historians claim about any topic, therefore they are free to disregard them when they present evidence that conflicts with their priors.

                    1. Thank you both.

                    2. “He won a bunch of awards for it. Turns out: a lot of his research was bad or fake. ”

                      Yeah, the problem is, you got that backwards. Turned out a lot of his research was bad or fake, and a lot of his quotes from source materials altered or taken wildly out of context. And THEN he won a bunch of awards for it.

                      He got the awards after people were already pointing out the problems.

                    3. Why do you always disregard the profession’s response over the last twenty years? It’s like you want to pretend the profession is still cheering him on, when 1) every historian who supported him voiced their disgust at his betrayal, 2) other historians have written about what went wrong with him and criticized the profession for its failures, 3) there have been twenty years worth of PhD candidates who have come into the profession knowing the damage he caused.

                      It’s sort of like writing off the medical profession because of Wakefield.

                      I assume you don’t want to acknowledge how the profession responded because you want to disregard all their claims about the past that have personal and political relevance to you so you don’t have to question your assumptions about the world. It’s far easier to just disregard them than consider the possibility that the people who do the work of history, work that you don’t do yourself, might actually be more right about the nature of the past and historical causation than you are.

                  2. Bellesiles wrote “”Arming America: The Origins of a National Gun Culture (Knopf, 2000), [which] claimed to show that until the Civil War, guns were relatively rare in the United States, an argument that incensed gun-rights advocates. They were giddy over his downfall. Once it became impossible to deny that the work contained serious errors, former supporters felt betrayed and rapidly disassociated themselves from the book and its disgraced author. It was hard to tell who hated him more.”


                    1. “Once it became impossible to deny that the work contained serious errors”

                      In the sense that it contained falsifications, not mistakes. Falsifications which were evident from even a shallow examination if you had any acquaintance with the source materials.

                      And, problematically, when Emory did it’s investigation, they ignored all the altered historical documents, and focused like a laser on the obscure research that a historian reading Arming America might have innocently missed being fake.

                      Thus rendering the impression that thinking the book had been legit was an innocent mistake anybody could have made.

                2. Well that’s a bit of an extremist position. Even relativists like Becker and Beard or the work of Hayden White went that far.

                  1. Sorry that’s confusing. I mean “didn’t go that far.”

                  2. Yeah pushed too hard it does get sort of solipsistic but it’s always a good idea to see where they’ve been to know where they’re going.

              2. The reason you can criticize Bellesiles with authority, is because other people did the hard work of professional history to reach those conclusions.

                The person who “did the hard work of professional history to reach those conclusions” was a computer scientist and amateur historian named Clayton Cramer. The academy had nothing whatsoever to do with it, and in fact harrumphed Cramer’s work long after Bellisiles’ fraud was patently obvious to any neutral observer.

                1. Violent Sociopath, Cramer’s work debunking Bellesiles deserves serious credit. You are correct to note he is not a professional historian, which in some ways makes his accomplishment even more credit-worthy.

                  If Cramer had been a historian, he (and others following his lead) might not have gone on to commit the historical error of presuming Bellesiles’ thesis had been refuted by his fraud, and the gun culture position vindicated. There is little or no evidence to support that conclusion, and it does not follow logically.

                  I speculate that is one of the reasons why very good professional historians who were familiar with the periods and places Bellesiles research ostensibly covered, did not at first recognize his fraud. To a historian who knew the record generally, but not the Bellesiles records specifically, the general conclusions Bellesiles reached may not have seemed far off the mark. Other historians may have noted—without systematic research—that the record did not seem to show that many guns around. In short, Bellesiles may have been right on the facts about not-so-many guns—but, of course, wrong, and ultimately fraudulent in resorting to and distorting records which could not prove his case.

                  Where Bellesiles’ accusers (and especially their many fans) have gone wrong, is in assuming that those same records which failed Bellesiles therefore do prove their own case to the contrary. That is not only a logical error, it is wrong in fact. The controversial estate records are far too incomplete, unrepresentative, and subject to confounding variables to prove anything at all about gun prevalence. Someone looking to settle that question will have to find the evidence elsewhere.

                  The question remains open. I think it is doubtful that any professional historian will go anywhere near the gun prevalence question for a very long time.

                  1. 1)I have previously given you citations down to the page level of British records documenting the ubiquity of civilian gun ownership during the siege of Boston.

                    2)For other readers, you can read Clayton’s Armed America for yourself and see if Mr. Lathrop’s commenting is accurate.

                  2. If Cramer had been a historian, he (and others following his lead) might not have gone on to commit the historical error of presuming Bellesiles’ thesis had been refuted by his fraud, and the gun culture position vindicated.

                    This is a remarkable statement. I am aware of no other field of intellectual inquiry in which demonstrable fraud in advancing a particular thesis does not operate as a refutation of that thesis.

                    There is little or no evidence to support that conclusion

                    This, of course, is a lie. There’s ample evidence from the documenting the ubiquity of civilian gun ownership during the Founding era. Part of the reason Bellisiles’ thesis was so arresting (and enticing to left-leaning/gun-hostile “professional” historians like Garry Wills) was because it ran contrary to everything else we know about eighteenth- and early nineteenth-century America.

                    To a historian who knew the record generally, but not the Bellesiles records specifically, the general conclusions Bellesiles reached may not have seemed far off the mark.

                    No. A historian familiar with the record generally would have been extraordinarily skeptical of Bellisiles’ claims. Instead, professional historians had to be dragged kicking and screaming to investigate and admit his fraud.

                    1. I am aware of no other field of intellectual inquiry in which demonstrable fraud in advancing a particular thesis does not operate as a refutation of that thesis.

                      Violent, try to think that through. Fraud discredits the author, not necessarily the thesis. If it happened that the fraudulent evidence were the only evidence upon which the thesis could possibly be based, then you would be right.

                      For a historical case such as Bellesiles was attempting to make, other potential evidence abounds. That Bellesiles tried to make his case after choosing evidence which could neither prove the case nor refute it, and then turned to fraud, tells you nothing at all about what that other evidence might have shown if it had been examined instead.

          2. Bellesiles: “Some toxins can be deadly in small doses.”

        2. No, lathrop is a Howard Zinn kind of guy. Don’t kid yourself, Brett.

          1. Commenter_XY, given the frequency I cite him, I thought you might have noticed I am an Edmund Morgan kind of guy. And David D. Hall, and Richard Warch. I have also mentioned Michael Oakeshott a bit. Don’t think I ever mentioned Zinn to anyone, nor Bellesiles either, except to criticize him.

            1. Anymore names you’d like to drop, while you’re at it? Your appeal to authority is lacking some heft. Those are rookie numbers.

              1. The remark about rookie numbers baffles me. Can you explain that one?

        3. Lathrop is full of hot air. He isn’t a professional historian…when I called him out on this, he said he only received training in historical research methods, right before making a mistake by reading into my words something that I didn’t say, a mistake that a professional historian who was worth his salt wouldn’t make.

          1. mad_kalak, you did not “call me out,” on not being a professional historian. I put that right up front, repeatedly, and from time-to-time, because I do offer a somewhat professionalized take on historical methods when I criticize originalism. I do that in the interest of staying forthright. I did get enough professional training to keep my remarks well-founded, and from good teachers. I would happily defer to any well-qualified historical professional, if only one would show up here.

            You got belligerent (what’s new), so I repeated myself for your benefit. Now I get repaid with an accusation of dishonesty. That’s you, I guess.

            1. You pretend to be a professional historian, but when asked to show some street cred, well, you demure. Classic motte-&-baily tactics.

              Since you went there, tell me, how much practice do you get with this Mr. Miyagi super special training? Are you an author? Are you a professional analyst of some type? Is this a few courses you had in grad school? I presume you went to grad school only someone at profusely wordy could have.

              I said it before, and I’ll say it again, any competent researcher in a field like anthropology or economics, who knows their qualitative methods, does as good or better than any “professional historian”.

              1. mad_kalak, once again, I have gone out of my way to say to everyone, time and again, that I am NOT a professional historian. I said it to you, again, just a few minutes ago. So you can shut up about that one. It takes a real asshole to keep repeating a baseless charge after receiving a personal correction, just for you.

                Also, let me push back, just a bit, about your, “appeal to authority,” remark. That is akin to the right-wing tic of denouncing elites, but even less justified. There is such a thing as expertise. The term properly refers to a body of knowledge held in common, by people who have practiced particular activities, and performed particular studies.

                Even folks who are not anointed members of such a fellowship are free to study whatever expertise the members publish, and profit by it. Scoffing at folks who try to do that is a habit of ignorance. Perhaps you could justifiably criticize the limitations of an autodidact, if you were talking about one. But it seems unwise to do even that, when you yourself behave as an antididact, and display a reckless lack of curiosity about what someone else might have learned.

                1. Yes, yes, I know you have said you aren’t a professional historian. I noted as much in a reply to Brett on this very thread. Yet, despite your repeated protestations, a fellow regular commentator thought you were. You’re walking around in a figurative white labcoat with clipboard in hand, and like it when people presume you’re a scientist. I dunno, maybe you are, so correct the record.

                  Time and again, you appeal to your special training for a profession you aren’t a member of, and then are silent of any indication of the level of training you received, where it was at, how often you use it, etc. etc. You’re like a guy who went to a boxing seminar once but who doesn’t train in a boxing gym, so unless you’re going to put up some stats, why should we listen to you over anybody else?

                  Your defense of expertise is amusing. It’s you that disparages the expertise in historical research that many others outside the historian profession have. Don’t make it out like I’m against “experts” when I’ve been saying all along, and in this thread, that there are more experts in other academic professions. Anybody who knows their qualitative methods is a competent historian.

                  1. Not saying there are not any, but please show me a few examples of people who never got professional historical training, who nevertheless have notable historical expertise.

      2. Toranth, are you a lawyer? When I talk to lawyers about expert witnesses, they tell me there is no substitute for getting the world’s leading expert. Use that as your guideline. Find someone who is the world’s leading expert on the period and place under discussion, check to be sure he/she has not taken prior positions on the controversy in question, and choose that scholar. There will probably be a small number of others (low single digits) who are arguably as good, if you can’t land your first choice.

        1. Getting the world’s leading expert? Great idea!

          Who’s that? Do I get to decide?

          I’m not sure if you really don’t understand the point, or are just trying to deflect. Outside of (most of) mathematics, there are zero fields that have 100% certainty. Choosing historians, or extolling experts, is not a neutral and objective task. Your “world’s leading experts” who are somehow experts in something without having ever expressed an opinion on it, are no less chosen through biased and untrustworthy methods than anyone else.

          1. Toranth, in the history field, the world’s historians are the de facto authorities on which of their colleagues do it best. Pick a time and place in the past, check with historians who practice related interests, and you will usually find good consensus on who the leaders are. The same names would be near the top of nearly every list. Throughout academia, you could query senior historians at almost any institution, to ask who was the best among their colleagues to consult on any particular question, and either get about the same short list of names, or be directed to someone who would give you that list.

            That makes it kind of like mathematics or physics, and for a similar reason. What historical practitioners do is often too far outside commonplace experience to allow accurate assessment by anyone but peers doing work in similar specialties. I little doubt that the same phenomenon applies in other academic specialties, but I am sure about it with regard to history.

            Given that on this blog I am trying to persuade folks who suppose history is completely accessible to everyone who can read—and who think writing it is largely a matter of opinion besides—I don’t expect you to agree. But that’s the way it really is.

            You could disabuse yourself, of course, and have fun doing it. Edmund Morgan wrote a terrific history relating the development of the notion of popular sovereignty. It is titled, Inventing the People: The Rise of Popular Sovereignty in England and America. Of course, I do not recommend that particular work at random. I recommend it because the text suggests such staggering erudition that even someone unfamiliar with archives and historical methods can readily notice the difficulties of creating that much original insight, and pause in amazement. Why not give it a read?

            Morgan was a great writer, even humorous at times, and the book is accessible by any educated person. Read it, and then ask yourself the question, “Who else have I heard of who could have written this?” I have no idea what you might answer. I do know what most professional historians would answer: “Nobody else on the planet could have written that.” Why not give it a try, and see if you agree. It would be a start, at least.

  10. There is not really a debate: Self defense, outside the home, has been a recognized defense at common law for over 250 years. That implies the tools for self defense be available.

    Pennsylvania, Virginia (since the 1790s) have had a parallel 2nd amendment guarantee and that has always included the right to open carry. Most other states as well. Some states do not, like Maryland. I invite you to go back to 1867 and read why the legislature could not agree to add it to the constitution. Citizens in Maryland absolutely had the right to carry in public in 1867, that was not the issue preventing it from being added.

    In any case, there is “debate” and then there is wishful thinking and denial. Mostly the gun prohibitionists are in denial. I wish they would get past denial and into acceptance as soon as possible, so that we can have fruitful conversations.

    1. “In any case, there is ‘debate’ and then there is wishful thinking and denial. Mostly the gun prohibitionists are in denial. I wish they would get past denial and into acceptance as soon as possible, so that we can have fruitful conversations.”

      Most of them that I’ve talked to take a position that things are not the same as they were in colonial days. I can add that the main justification for a right to possess firearms has changed. National defense now comes from a standing army.

      1. Ahh yes. “You have no chance against our own army, should our government go rogue, so no guns for you!”

      2. Have we seen a peaceful and mostly limited government because human technocrats are now angels, unlike 250 years ago, or precisely because citizens are armed? Are times really different? To make an analogy – incidence of measles is low, does that mean we no longer need the vaccine? Or are the anti-vaxxers simply free-riding on herd immunity?

        It only took a decade or less for Venezuela to go from rich socialist utopia to poor socialist hell, without electricity in many parts of the country.

        I keep reading how Trump is a megalomaniacal dictator, so maybe Democrats should be tooling up?

  11. The note seems to be based on a fairly obvious misconception – that the justification for adopting a rule is incorporated as a part of the rule adopted.

    Thus a law forbidding going above 75 mph on the road may be justified as desirable to reduce death and injury. But that doesn’t mean the rule incororporates an exception that it’s OK to exceed 75 mph if you are speeding, reasonably believing that you are reducing death and injury by so doing – eg by rushing someone very ill to hospital. Certainly the prosecution may be lenient when it hears your excuse, but the rule does not, by some mysterious osmotic process, incorporate the justification. The justification is external to the rule, and is not appealed to as part of the operating mechanism of the rule.

    Thus originalists may justify their adoption of originalism as the preferred method of constitutional (and statutory) interpretation, based, inter alia, on the likelihood that it will keep the law stationary, unless it is deliberately moved by explicit constitutional or statutory amendment. Legal stasis, absent explicit reform, is one of the justifications for adopting an originalist interpretative framework.

    But there is no secret codicil to the operating rules of the originalist method that says “blah blah blah so long as you never change the law.” There is no super extra mega stare decisis within the originalist method. If previous judges got the law wrong, because they failed to adopt the original public meaning of the text, they got it wrong and their mistake has to be corrected. If that changes the law, tough noogies.

    Thus “adopting originalism is a good policy because it will usually increase judicial restraint” does not mean that judicial restraint is an internal component of the originalist method.

    Which is not to say that originalists who value judicial restraint, and use it as an external justification for using originalism, may not choose to judicially restrain themselves when their originalist method fails to provide an answer that is sufficiently clear to them. But if they do, that is not because the originalist method itself requires them to do so.

    1. This originalist justifies originalism on the basis that originalism is just how language functions.

      Constitutions, cookbooks, you read them in the same way: The meanings of the words, (Including specialized domain meanings.) and the rules of grammar. And if you’re dealing with a document that’s not recent, you have to use the meanings and grammar of the time it was written.

      That’s just what you do, if you want to know what a document means. You only do something else if you know the document means something you don’t like, and you want to pretend it has a different meaning.

      If you want to prevent language from working.

      That’s why arguing with living constitutionalists is always an exercise in frustration. All you’ve got to argue with them is language, and they’ve already decided they’re not going to let language work. Once somebody goes down that rabbit hole, nobody else can get them back up it, they are lost to reason.

      1. “This originalist justifies originalism on the basis that originalism is just how language functions.”

        … when wielded by people who don’t really understand how communication works. The words in your vocabulary aren’t locked permanently into what it is that YOU understand them to mean.

        1. Could you elaborate?

    2. “The note seems to be based on a fairly obvious misconception – that the justification for adopting a rule is incorporated as a part of the rule adopted. ”

      The 2A definitely has a preamble that explains what it is for. That’s no misconception.

      1. That issue has been thoroughly discussed and thoroughly debunked.

      2. Strange as it may seem, given the topic, I hadn’t even thought about the application of what I was saying to the Second Amendment itself.

        But it does apply in just the same way. The militia bit is the justification, the prohibition on the infringement of the right to keep and bear arms is the rule.

        Unusually, the justification is stated explicitly in the text of the provision containing the rule; but grammatically it is not even slightly ambiguous that the militia bit is merely a justification, and not in any way operative on the rule.

        To create a 2A consistent with the wishes of progressives you would need to adjust the words, eg as was prposed but rejected in the Senate :

        “A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms for the common defense, shall not be infringed”

        The militia bit would still be non operative justification, but the right itself would be limited to the “for the common defense” purpose, and the militia bit would be useful, admissible, context for the meaning of “for the common defense.”

        1. Well said. Professional historians have their area of expertise but they have no exclusive claim when it comes to logic and reason. For instance we can thank Saul Cornell for digging up the Scribble Scrabble debates, but his inability to grasp their full import is good reason not to blindly accept his pronouncements regarding the scope of the right to keep and bear arms. Cornell quotes from the scribble scrabble debate: “The right to keep and bear arms, generally, for all purposes, is undoubtedly an alienable right; and the legislature have a power to controul it in all cases, except the one mentioned in the bill of rights, whenever they shall think the good of the whole require it.”

          From that one sentence we can gather that “bear arms” was not used exclusively as an idiom, the right to bear arms was not associated only with militia uses, and that readers of English at that time understood that “for the common defence” limited the protection of the right by the MA constitution to that one use. Then, as now, qualifiers restricted rather than expanded the right to bear arms despite Justice Stevens’ asinine insistence otherwise.

  12. Three words: Romer v. Evans…..

    1. That’s different, because things, you bigot.

  13. I think you could get away with passing a law that openly carrying a weapon implies will to use it, thus justifying precautions against violence. Such a law isn’t regulating the conduct of choosing to carry, it’s regulating how other people may react to coming across a person who insists on open carrying in public.
    Openly carrying is an intentionally provocative act, and deserves to be treated like one.

    1. “Openly carrying is an intentionally provocative act….”

      Open carry is the “we’re here and we’re queer” equivalent in the 2nd Amendment movement. I think it’s counter productive, because open carry protests, like they did in CA, usually results in increased prohibitions because it scares the normies.

      That said, you’re treating the exercise of a right as contingent upon those have to might be offended by it. That’s not how rights work. If my speech offends you, I don’t lose my right to free speech. That speech that offends is the one most deserving of protection.

    2. The real problem here is that “bear” fork of “keep and bear”; Some kind of carry has to be legal, not just legal, non discretionary, because it’s a right.

      “Openly carrying is an intentionally provocative act, and deserves to be treated like one.”

      Sounds like you’re admitting you’re regulating the expressive component, there. So, more of a 1st amendment violation?

    3. Tell that to the cops who open carry everywhere, every day.

      What is “bear arms” if not to openly carry?

      Note that some states allow only open carry, and some allow only concealed carry. Thirty-one states allow the open carrying of a handgun without any license or permit, although in some cases the gun must be unloaded.

      1. It’s here that the justificatory portion of 2A :

        “A well regulated Militia, being necessary to the security of a free State…..”

        can be legitimately used to help construe the meaning of “bear” in the operative part- to the extent that “bear” is thought to be ambiguous between open and concealed carry.

        The mention of the usefulness to the miitia of citizens keeping and bearing arms, provides some context – “bear” can hardly be taken to exclude the carrying of muskets – the primary weapon of the militia at the time of 2A’s adoption. Muskets are very difficult to bear other than openly.

    4. Yes, it is regulating the conduct of those choosing to carry by the very prohibition. And to get there you start with the assumption of bad intentions for all who would choose to do so. Look, you may be a coward intimidated by inanimate objects but don’t project that onto the rest of the public with your declarations of how open carry is intentionally provocative and a precursor to violence.

  14. If you want to find out what “shall not be infringed” really means, just pass a law requiring a carry permit to vote.
    If ‘common sense control’ is valid for one constitutional right, it should be valid for all.
    So we could also include background checks and license fees and arbitrary denial by county officers to free speech, and require a carry permit to register for social media.

  15. “Open carry is the “we’re here and we’re queer” equivalent in the 2nd Amendment movement.”

    That’s true in some locales. In others, e.g. parts of the rural west, it’s just the most convenient way to carry, and not controversial.

    1. Of course. That’s why there aren’t open carry protests in Wyoming.

      It’s also true that a gay pride parade in San Fran with fellatio openly done on the street and all sorts of other degeneracy raises few eyebrows, but done in Wyoming, well, then it’s a “we’re queer and we’re here protest” whereas in San Fran it wasn’t.

      1. That sums it up rather nicely 🙂

  16. I was struck by this line:

    “where the conduct at issue had long been regulated due to the pronounced threat to public safety”

    Yet I’m not aware there is a “pronounced threat” from open carry, surely it disturbs some people and western movies make if seem that someone was shot down in the street every day, but I’m not aware of rampant killings due to open carry anywhere in the US.

    I’ve probably missed something somewhere.

  17. Using a clear historical record standard is, to borrow a phrase from Peter Novick, “like nailing jelly to the wall.”

    Much like claims to “objectivity” will be endlessly debated, so too will claims of the existence of a “clear historical record.” Even when there is one, there will often be a significant portion of the population who thinks it is either not clear or clearly supports a contrary conclusion. There are people, including politicians, who think that some vague notion about “states rights” was the reason the Confederacy seceded, and not slavery, despite the overwhelming historical evidence that it was the latter. Therefore the courts will not lend their judgments anymore legitimacy or credibility by deliberately proceeding in such a fashion.

    1. Please don’t see this as defending slavery, but the slavery was a state’s rights issue. So, while the Civil War was ultimately about slavery, it was also through the lens of state’s rights.

      1. Except that doesn’t really comport with the Southern States’ position that they should be able to force Northern States to take part in the slavery system through forcing them to return runaways and that there should be no limit to the spread of slavery in the territories.

  18. Can you please put “only” in its proper place in the title?

  19. Text and tradition leads to incorporating RKBA via Cruikshank and then acknowledging some right to open carry while allowing very liberal regulations for guns outside the home. So Bush 41 signed federal gun control school zone regulations and historically very pro-2A Texas heavily regulated handguns outside the home.

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