Slate, slate.com/… has an interesting report on Clarence Thomas and his Bruen decision last June, when Justice Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified.
Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun while under indictment for a violent crime, to carry a gun into airports, and to scratch out the serial number on a firearm, rendering it untraceable.
Last Thursday, Judge Carlton Reeves of the Southern District of Mississippi charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. At worst, it will demonstrate the absurdity and impossibility of Thomas’ command. At best, it will restore sanity to an area of jurisprudence that is going completely off the rails.
Reeves’ order is bracingly honest about the sorry state of Second Amendment jurisprudence today.
“The justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote. Federal judges “lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.” Putting oneself in the mindset of rich, white men in the 18th century requiring training and practice. “Yet we are now expected to play historian in the name of constitutional adjudication.”
To illustrate his point, Reeves wrote that while historians still fiercely contest the theory of an individual right to bear arms, that right remains the law. He quoted the academic Patrick J. Charles, who wrote that advocates of this theory “broke, and continue to break, virtually every norm of historical objectivity and methodology accepted within academia.” Charles’ complaint could be applied to a huge amount of pseudo-originalist legal theory. As he explained:
“Minority viewpoints are cast as majority viewpoints. Historical speakers’ and writers’ words are cast in terms outside the bounds of their intended context or audience. The intellectual and political thoughts of different historical eras are explained from modern vantage point. Historical presumptions or inferences are sold as historical facts.”
Bruen exemplifies these problems. Thomas adopted a tendentious and selective reading of the record, endorsing a false narrative shaped by Republican-allied academics funded by gun rights groups like the NRA. He started with the false premise that the Second Amendment created an individual right to bear arms—a right that the court established for the first time in 2008’s District of Columbia v. Heller—which scholars have comprehensively debunked using originalist tools. He then manipulated or ignored long-established limits on concealed carry to conclude that such restrictions are not rooted in American history.
One would really think this might be obvious. What white, wealthy, and male property owners thought about firearms regulation in 1791 when it comes to modern weapons and regulation is rather impossible to discern without a Ouija board. And even in 1791 there were varying views on constitutional meanings.
What we do know for certain is what white, wealthy, and male property owners thought about insurrection, which is that they should be quickly crushed, as proven by their response to the Whiskey Rebellion. Which trashes the whole idiotic "Insurrectionist Theory" of the purpose of the Second Amendment.
There is positively no constitutional right to a own a firearm for the purpose of armed insurrection against the government of the United States, as some January 6 defendants are now learning the hard way.
Even what white, wealthy, and male property owners thought about the definition of "arms" is a little unclear. But it certainly didn't foresee what an extended magazine is, or even semiautomatic weapons.
And to the point, what does "arms" even mean today? Are particle beam weapons that could liquify a police car going to be included as a 2nd Amendment constitutional right in the future? A person of 1791 might regard an AR-15 almost as such.
The whole “originalist: thing really smells as far as I’m concerned, because if it’s fair that we are not to hold white, wealthy, and male property owners to our own sensibilities today, how absurd is it to bind ourselves to some of theirs that have long outlived their context? The founders feared a large standing professional army would invite “foreign adventurism”, and boy, has that ship already sailed.
Today, in spite of the best efforts of a few of those wealthy landowners, even poor white trash like myself are allowed to vote, and I don’t live in fear some of my friends will be hunted down by a “slave patrol” and forced into involuntary servitude. In fact, some of those friends of mine are even part of that “well regulated militia” — at least on weekends.
It’s called the National Guard.