And some are not sufficiently analogous to the licensing regime at issue here.” Dr. Some arose in historically unique circumstances. Some may have been based on a constitutional rationale that is now impossible to identify. Justice Stephen Breyer’s dissent mocked the opinion: “Some of the laws New York has identified are too old. Instead, Thomas ransacked the historical record, classic “law office history” that seeks supporting evidence. Thomas makes no effort to understand the reason why the law was enacted over a century ago, how it has worked, or the fact that New York and other states with a similar law have lower rates of gun crime than elsewhere. An honest reading of history would acknowledge this fact. During periods of high crime, we tightened gun laws, and with good reason: times change. Regulation of firearms has ebbed and flowed. Thomas’s opinion mentions “public safety” as a goal precisely once in 63 pages (and only to criticize an earlier ruling that used that rationale). Bruen, the Court struck down New York’s 1911 law largely prohibiting people from carrying a concealed weapon in the Big Apple. In New York State Rifle & Pistol Association v. Well, it was Thomas who wrote the majority opinion in last Thursday’s big Second Amendment case. Scalia was asked what the difference was between him and Justice Clarence Thomas. Heller, purported to rely on history when he found that it recognized an individual right to own a gun to protect “hearth and home.” But it also made clear the vast majority of gun rules to protect public safety could stand. Justice Antonin Scalia’s big ruling in 2008, D.C. By the time of her confirmation hearing, Elena Kagan would quip, “We are all originalists now.” At times the approach has helped forge a majority for unexpected rulings on criminal justice.īut the Supreme Court rarely pretended it could just take a time machine to ask the guys in powdered wigs what to do. It coincided with “Founders Chic,” all the thick biographies of the founding generation. It resonated with conservative religious practice - a form of constitutional fundamentalism and literalism. Soon it became a comfortable talking point. It was a wildly controversial idea first proposed in a big way in a speech by Attorney General Edwin Meese III and then defended by Robert Bork in his doomed nomination for the Supreme Court. Supposedly it would take the politics out of judging. The insistence that “original intent” or “original public meaning” is the only legitimate way to read the Constitution came as part of the conservative reaction to expanding rights in the 1960s and 1970s. It was such a notorious disaster that the approach was shelved for a century. Dred Scott was the first major originalist ruling, claiming to find its defense of slavery and its assertion that even free Black people could not be citizens in the original intent of the founders. As Chief Justice John Marshall wrote, “We must never forget that it is a constitution we are expounding.” A great charter would enable a growing nation to meet new challenges. Certainly it is not what the founding generation had in mind. The notion that the Constitution should be read as frozen in time is a relatively new invention. Liberals must find their voice and put forward a better way to explain the Constitution and how it works - or we can expect more weeks like this one every June as we wait for oracles in robes to consult the vapors of history and tell us our fates. Both rely on a radical approach to how to read the Constitution: making major social policy by purporting to use “originalism.” Together they show how flawed that can be. Last week’s Supreme Court rulings on abortion and guns shook the country. Click here to receive it every week in your inbox. Attend the Brennan Legacy Awards Dinner.Advance Constitutional Change Show / hide.National Task Force on Democracy Reform & the Rule of Law.Government Targeting of Minority Communities Show / hide.Campaign Finance in the Courts Show / hide.Gerrymandering & Fair Representation Show / hide.Ensure Every American Can Vote Show / hide.
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