Tuesday, June 28, 2022

The Veneration Of The "Founding Fathers" Comes Home To Roost

Michael Waldman, President of the Brennan Center for Justice, explained to MSNBC that the Supreme Court saying that states rights apply to an abortion but not to guns is a major issue for the Court.

"The two cases together say that some states can ban abortion but other states and they usually are other states, can't regulate guns and gun violence within their states," said Waldman. "It's a very different approach. The ruling struck down New York's law. A law that goes back to 1911. Saying that you can't carry a concealed handgun in New York City, in a crowded place like that. And it is the first time in a dozen years that the Supreme Court has made a major ruling on the Second Amendment since it first said, and it was only back then in 2008, in 2010, that you had an individual right at all to have a weapon."

"But what's really significant about this case is not just what it will do in New York where there will be more guns and more violence and more crime as is expected in New York. But what it does nationwide, what the Supreme Court said is effectively you can't actually take public safety into account when you're making these gun laws. You can only look at 'history and tradition.' And Clarence Thomas wrote the opinion, used the history very selectively, but what it means is that hundreds of gun laws that have been upheld by the courts, Republican and Democratic judges, federal and state judges over the last 12 years, hundreds of those laws now will get challenged by the NRA and others saying you can't read the history right."

There's the question of ideology, front and center.  One wonders where "states' rights" and "laboratories of democracy" went.

"Again, I think it is quite clear that these laws respect individual rights and benefit public safety but it's a lot harder to know how courts and judges are supposed to scratch their heads and figure out this vague new standard. How do you find out what the history and tradition was way back in some imagined past time for these modern laws? It's not a way to run a railroad. It's not a way any other country that you know of makes decisions about protecting public safety."

I know the legal elements of the analysis of history are more nuanced than the loose talk in public discourse about the "Founding Fathers" and what "they meant," but it's little better than the arguments in these Supreme Court opinions.  Until 2008 there wasn't even a recognized individual right to have a weapon; and while some of the latest jurisprudence seems to be bent on reversing the extension of the Constitution to the states via the 14th Amendment, Thomas says here that the 2nd Amendment must be extended to the states, and must be followed in the absolutist fashion of his interpretation.

A primary example of a right the majority says has received appropriate respect is the right to free speech," the Slate report explained. "Throughout the opinion, Thomas says that the Second Amendment must receive the same due as the First. Thomas knows that the First Amendment does not provide unlimited protection to speech, that the state may regulate speech in all sorts of ways. So, he is not referencing First Amendment law to suggest that there are no limits on the right to keep and carry arms. 

I'm not sure why the 2nd must receive the same due as the 1st, while the 14th means whatever the hell the Court wants it to mean in the moment, and the 15th can't be enforced at all because "states' rights."

It's all just grab-ass and "We're the Supreme Court, fuck all y'all!," and then throw in some kind of nod to "history" or "what the Founding Fathers meant" or "just interpret the law the way we do!"  The Court is ignoring the parties in their cases, the impact of their rulings, even the fact they must provide guidance to the lower courts, seeing as they are the Supreme Court.

Shit, it's just turtles all the way down; and we're getting more and more mired in the mud.

1 comment:

  1. What also stands out in the opinion (I need to go back really digest it, but it's length is daunting) is the incessant reference to a right of self defense (interestingly self defense is not in the Constitution, just like abortion, but is fundamental to the right of gun ownership. Actual language like "militia" can be ignored, but added language like self-defense, fundamental). The conservatives have rejected the militia language, that wouldn't be remotely broad enough for limitless gun ownership, and saying guns are needed in case you want to overthrow the government is too extreme to say out loud even for these reactionaries. For the same reason they can't say that guns are needed to threaten and intimidate others. So self defense has become the justification. Given how intensely they are leaning into self defense, and how it will be used to continue to invalidate a wide swath of even modest gun controls, I would not be surprised if eventually the 5 or 6 reactionaries find a constitutional right to stand your ground. It seems the logical endpoint and cements all the arguments.