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On guns, originalism as insanity


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Republicans own this. 

Trump has poisoned our future with these ******* 'Federalist Society' judges.  We need them to pay the price every election for however many years it takes to be rid of them. I hope the Democrats are preparing a campaign pointing this out.

Our own judicial Taliban.  Take us back 300 years. 

https://www.washingtonpost.com/opinions/2022/11/17/originalism-guns-supremecourt-domestic-violence/

 

By Ruth Marcus,  November 17, 2022

 

In May, Louisville police were called to deal with a domestic violence complaint against a man named Litsson Perez-Gallan. The alleged victim, the mother of Perez-Gallan’s child, “states she was sitting on the bed holding their child and perp struck her on the left side of her face,” an officer wrote. “Vic then sat the baby down on the bed and vic stated perp then drug her to the bathroom and struck her in the face again and then began hitting her in the rib area. Vic had red marks on the left side of her face, a small laceration on her lip and pain around her chin area.”

The criminal justice system — a system that has too often ignored or underplayed domestic violence — worked, up to a point. Perez-Gallan was subjected to a restraining order. It barred him from being within 500 feet of his alleged victim or communicating with her.

In addition — and this is the subject of this column — the order prohibited Perez-Gallan from having a firearm.

The next month, Perez-Gallan was stopped while driving an 18-wheeler in Texas, near the border with Mexico. In his backpack, he had a stolen Sig Sauer pistol; in his wallet, a copy of the court order stating his conditions of release. He was charged with violating a federal law that prohibits gun possession by those under domestic violence restraining orders.

So far, so good? Not in the aftermath of the Supreme Court’s ruling this year in New York State Rifle & Pistol Association Inc. v. Bruen. The six-justice conservative majority, rejecting New York’s concealed-carry licensing law, said that the gun regulations had to be based on, or similar to, those that existed historically to pass constitutional muster. Without a historical analogue, the gun law violates the Second Amendment.

You might be able to guess where this is heading. Turns out, in Colonial times and beyond, authorities didn’t take domestic violence seriously. So, Perez-Gallan’s lawyer did what lawyers do: He seized on Bruen to argue that the law violates Perez-Gallan’s Second Amendment rights.

“The American Revolution secured the rights of white men to be protected from interference by the government in their private affairs,” wrote the lawyer, Shane O’Neal. After the revolution, he argued, “the newly minted American States moved away from laws in England and the New England colonies that punished domestic violence. Instead, practices that protected women and children from maltreatment by male heads of house were discarded as incompatible with a newfound sanctity for the family — a private sphere outside of the reach of government.” He quoted a historian: “Courts became notably reluctant to impose constraints on men’s abusive treatment of their household dependents.”

And no surprise: With domestic violence not seen as a problem, there isn’t much evidence of founding-era rules that prohibited the possession of firearms by those accused of it. “Our founders would never have anticipated disarming people accused but not convicted of domestic violence,” O’Neal argued.

That’s right: Because the law then countenanced abusing women, it cannot be interpreted to protect them now.

Defending his client zealously is O’Neal’s job. Interpreting the Constitution both faithfully and reasonably is the judge’s job, and here is where things really went off the rails. U.S. District Judge David Counts found this month that the federal law violates the Second Amendment and ordered Perez-Gallan’s indictment dismissed.

“Domestic abusers are not new,” noted Counts, who was originally nominated by President Barack Obama and renominated by President Donald Trump. “But until the mid-1970s, government intervention — much less removing an individual’s firearms — because of domestic violence practically did not exist. … Glaringly absent from the historical record — from colonial times until 1994 — are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.”

This is what the Supreme Court has wrought, with its maniacal focus on originalism and its even more blinkered insistence that the hunt for “original public meaning” must be confined to a search for historical analogues. Never mind that the Founding Fathers didn’t conceive of ghost guns produced by 3D printers, or extended magazines — or rights for women, for that matter.

How absurd is this? Counts recites the historical punishments meted out for wife-beating: a 1672 case in which a man was sentenced to be “whipped with ten stripes” or a provision of the 1870s California penal code that subjected spouse abusers to “not less than twenty-one lashes on the bare back.” Yet surely even the most die-hard originalists would conclude that a modern-day whipping law constitutes “cruel and unusual” punishment under the Eighth Amendment, whatever happened back in the day.

The aftershocks of Bruen are just beginning to work their way through the lower courts; Counts’s ruling might not stand. Even under the high court’s grudging approach to gun regulation, it is possible to uphold this restriction. The court in Bruen emphasized that the Second Amendment protects the right of “ordinary, law-abiding, adult citizens” to carry guns outside the home. Someone arrested for assaulting an intimate partner and subjected to a protective order issued by a judge is neither ordinary — let’s hope — nor law-abiding. And, as the Justice Department argued in the Perez-Gallan case, the Second Amendment was “adopted against a historical backdrop that allowed disarming dangerous persons.”

But the evidence of fallout from Bruen is alarming. Last month, a federal judge in New York invalidated a state gun law passed in the aftermath of Bruen that restricted guns at summer camps, among other places; he reasoned that there weren’t such camps in Colonial times. In September, Counts struck down a federal law that prohibited those indicted on felony charges, but not yet convicted, from possessing guns. “There are no illusions about this case’s real-world consequences — certainly valid public policy and safety concerns exist,” he acknowledged. “Yet Bruen framed those concerns solely as a historical analysis. This Court follows that framework.”

I wrote after the summer camp ruling that this was “originalism as parody.” But that understated the situation. This is originalism as insanity.

Edited by homersapien
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Never....and I mean NEVER!!!!.....look for the root cause. Just keep blaming the object. 

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2 minutes ago, autigeremt said:

Never....and I mean NEVER!!!!.....look for the root cause. Just keep blaming the object. 

Uh, read the article.  The "root cause" in this case was a man who was under a restraining order for domestic violence. 

The law prohibiting him from owning a handgun directly addresses the "root cause".

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12 hours ago, homersapien said:

This is originalism as insanity.

All originalism is insanity. 

The context for justice should be the present.  Certainly not the 2+ centuries into the past.

But hey, I'll play along.  Muskets for everyone.  But,,,, only muskets.

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20 minutes ago, icanthearyou said:

All originalism is insanity. 

The context for justice should be the present.  Certainly not the 2+ centuries into the past.

But hey, I'll play along.  Muskets for everyone.  But,,,, only muskets.

You'd give a musket to a dude who beats his wife?

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8 minutes ago, The Freak said:

You'd give a musket to a dude who beats his wife?

Have you ever tried to load a musket and beat someone at the same time?

Wait,,, are you actually serious?

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The problem with Constitutional originalism is the same problem that Christians who believe in Sola Scripture run into. 

Like the Bible, the constitution was written in a vastly different world, with different priorities, different moral beliefs, etc. During the creation of both, people were a lot less free and had much less liberties than people have now. In both the Bible and Constitution, it was largely accepted that while everyone was 'created' equal...in the real life world everyone was not actually equal. and both the bible and Constitution were written by people of their time and reflect that inequality. 

 

As far as constitutional law goes, official amendments are basically impossible in our current system of government so we're seemingly forever trapped in the "intentions and beliefs" of flawed men who lived in the 18th century. 

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30 minutes ago, icanthearyou said:

Have you ever tried to load a musket and beat someone at the same time?

Hasn't everyone?

31 minutes ago, icanthearyou said:

Wait,,, are you actually serious?

No, just stirring the pudding.  The point was abusers should not be allowed to have weapons.  Unfortunately in reality it can't be prevented.

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14 minutes ago, CoffeeTiger said:

The problem with Constitutional originalism is the same problem that Christians who believe in Sola Scripture run into. 

Like the Bible, the constitution was written in a vastly different world, with different priorities, different moral beliefs, etc. During the creation of both, people were a lot less free and had much less liberties than people have now. In both the Bible and Constitution, it was largely accepted that while everyone was 'created' equal...in the real life world everyone was not actually equal. and both the bible and Constitution were written by people of their time and reflect that inequality. 

 

As far as constitutional law goes, official amendments are basically impossible in our current system of government so we're seemingly forever trapped in the "intentions and beliefs" of flawed men who lived in the 18th century. 

Excellent analogy.  Believing the sanctity is in the words, rather than the spirit of the words is a disingenuous venture from the start.

Law itself should not be a sacred principle.  Justice is a different matter.

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8 minutes ago, CoffeeTiger said:

The problem with Constitutional originalism is the same problem that Christians who believe in Sola Scripture run into. 

Like the Bible, the constitution was written in a vastly different world, with different priorities, different moral beliefs, etc. During the creation of both, people were a lot less free and had much less liberties than people have now. In both the Bible and Constitution, it was largely accepted that while everyone was 'created' equal...in the real life world everyone was not actually equal. and both the bible and Constitution were written by people of their time and reflect that inequality. 

 

As far as constitutional law goes, official amendments are basically impossible in our current system of government so we're seemingly forever trapped in the "intentions and beliefs" of flawed men who lived in the 18th century. 

Another part of it, as @icanthearyou mentioned, is the advancement of technology. Guns were far different at the time. Certainly people could predict the evolution of guns to an extent, but could they really foresee being able to basically carry a Gatling gun, especially when the Gatling gun itself wouldn't be used until 70 years after the Bill of Rights? Everyone expects our laws to change with the advancement of technology in other areas (computers/internet/AI, eugenics, chemical/biological research, etc.). Why should guns be excluded from that? 

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1 hour ago, NolaAuTiger said:

*That expression you make when non-originalists who don't know what originalism is try to criticize originalism.

giphy.gif

 

How dare you use an Obama gif to disagree with me!!!  Of course you know,,, this means war.

We can argue the definition all day long.  I've watched the disingenuousness in practice.

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We know what originalism is by definition and we know what originalism actually ends up being in practice when Federalist Society Judges pretend to use it to justify their rulings in the court room. 

 

 

 

 

 

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2 hours ago, icanthearyou said:

How dare you use an Obama gif to disagree with me!!!  Of course you know,,, this means war.

We can argue the definition all day long.  I've watched the disingenuousness in practice.

We agree on football, though, and people wish they had the sources that you and I have. That is what really counts. #NeverForget.

(I see this is not the smack talk forum. My apologies, gang.)

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49 minutes ago, NolaAuTiger said:

We agree on football, though, and people wish they had the sources that you and I have. That is what really counts. #NeverForget.

(I see this is not the smack talk forum. My apologies, gang.)

Just messing with you.  Everything is cool.👍

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On 11/18/2022 at 9:30 AM, homersapien said:

Uh, read the article.  The "root cause" in this case was a man who was under a restraining order for domestic violence. 

The law prohibiting him from owning a handgun directly addresses the "root cause".

No sir. The root cause is evil intent. 

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BtW in the wake of the mass stabbing deaths of four college students in Idaho we need to push for knife control legislation! Four people dead and the knife is on the loose. 

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14 hours ago, autigeremt said:

No sir. The root cause is evil intent. 

Well, if someone has been beating their wife and has a restraining order put on him as a result, I'd say that's a pretty clear indicator of "evil intent".

Are we so crazy we are going to insist such people - with a restraining order - have a right to arm themselves with guns?

Edited by homersapien
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On 11/21/2022 at 9:08 AM, homersapien said:

Well, if someone has been beating their wife and has a restraining order put on him as a result, I'd say that's a pretty clear indicator of "evil intent".

Are we so crazy we are going to insist such people - with a restraining order - have a right to arm themselves with guns?

That issue needs reform as well…..but more laws won’t fix the problem we have in society today. It’s no longer 1994. 

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On 11/21/2022 at 9:08 AM, homersapien said:

Well, if someone has been beating their wife and has a restraining order put on him as a result, I'd say that's a pretty clear indicator of "evil intent".

Are we so crazy we are going to insist such people - with a restraining order - have a right to arm themselves with guns?

If someone has been beating their wife - why haven't they been arrested, tried, convicted and sentenced?  We already have laws that address this and felons cannot own guns.  The issue is that the government actually has to do work to enforce the law.  I am all for keeping firearms from people that shouldn't have them, if due process is followed.   Unfortunately, many (if not all) of our "red flag" laws ignore due process, and frankly aren't followed by the government anyway.   

Throw the book at criminals, but stop attempting to punish everyone because we refuse to address those that commit crimes.

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All this dying so that a bunch of sniveling cowards can feel safe and, so that the RNC can have an addtional funding arm.

I have no respect for the cowards pushing the idea that assualt rifles are a constitutional right.  Stupid, selfish, cowardly.

 

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7 minutes ago, icanthearyou said:

All this dying so that a bunch of sniveling cowards can feel safe and, so that the RNC can have an addtional funding arm.

I have no respect for the cowards pushing the idea that assualt rifles are a constitutional right.  Stupid, selfish, cowardly.

 

And if your opinion mattered to me at all, I would be concerned.   
 

You try and sound concerned about “all this dying” but advocate against keeping criminals in jail - disingenuous.

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1 minute ago, GoAU said:

And if your opinion mattered to me at all, I would be concerned.   
 

You try and sound concerned about “all this dying” but advocate against keeping criminals in jail - disingenuous.

You are a coward and a liar.

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On 11/18/2022 at 9:30 AM, homersapien said:

Uh, read the article.  The "root cause" in this case was a man who was under a restraining order for domestic violence. 

The law prohibiting him from owning a handgun directly addresses the "root cause".

The real root cause was that this man was a nutjob. If you want to discuss Radical Reform of the Mental Health Community and finally start talking about REAL DTP issues, i think most of America is ready for that now. Where is the Bill or at least the hard proposal for the reforms? Lets talk about that. It is very obvious that we need to start this. Flame wars over what are really not the topic issues do nothing for anyone. One has to wonder when we stop the name-calling of the other side, whichever side that is, and the shouting matches. They do nothing.

To pass anything, we have to have both sides at the table. "Well Dave, the other side says so & so..." The other side has always said so & so since the beginning of time.

https://www.cbsnews.com/video/the-origin-of-americas-ugly-politics/#x

Educate yourselves...

Edited by DKW 86
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