I hope you didn't take the "dense" comment to heart, I was just playfully teasing with you for not reading my mindGE Morton wrote: ↑June 29th, 2022, 9:29 pm Huh? Above, you asked, "I'm asking why originalists don't leave it up to the states whether they want to or not [ban semi-auto weapons]." That question doesn't "imply" your new question, i.e., "why it's a 'natural' right to own semi-auto weapons but not sawed-off shotguns?" Those two questions have nothing to do with each other.
The answer to the second question is, that semi-auto weapons are currently the most effective and widely-used weapons for the lawful purposes the 2nd Amendment protects. Banning them would flout those purposes, leaving peaceful citizens vulnerable to predators who would ignore that ban (and there would be many). Sawed-off shotguns, on the other hand, are rarely chosen or used as defensive or hunting weapons, and banning them has no real impact on the 2nd Amendment. Instead they are mainly used by criminals who wish to conceal them (though shotguns, sawed-off or not, are rarely used as murder weapons anyway, and banning them is largely a symbolic gesture).
So, what I would want to object, you've already given a response below. I will leave it there.
At the expense of sounding like a broken record, though, wouldn't the intent philosophically have to match with the technology at the time? I'm not disputing that the intent was clearly for citizens to be able to bear arms, but the "arms" the framers were thinking of were muskets, not semi-auto weapons.GE Morton wrote:By examining the implications of the rights enumerated in the Constitution, and using historical sources to determine what liberties people exercised and took for granted at the time the Constitution was adopted. In my response to Leontiskos above, I wrote,
"It is the job of the courts to interpret that [9th] Amendment, not ignore it and leave claims arising under it for state legislatures to decide. It obliges them to examine the relevant history and, even more importantly, to determine whether a claimed but unenumerated right is consistent with or implied by other acknowledged rights, such as the right to equal protection of the law, and the right to be free of unreasonable searches and seizures of their "persons, houses, papers, and effects". Does the former imply a right to marry whom one wishes? Does the latter imply a "right to privacy"? I think they do. More broadly, is the the claimed right compatible with the grand scheme of establishing a polity in which people are maximally free to "pursue happiness" as they define it? Those are questions the 9th obliges the Supreme Court to address."
Most questions about what rights are encompassed by the 9th Amendment can be answered via those methods. The Amendment is not open-ended or all-encompassing (and thus meaningless).
They got it wrong in Dobbs, but not because the Court is "political." They got it wrong because the majority (following Scalia) believes the 9th Amendment (and the "liberty" protected by the 14th Amendment) are too vague to admit of principled decisions. So they argue the Court should not try. But the very presence of the 9th Amendment in the Bill of Rights obliges them to try.Astro Cat wrote:The court shirked the responsibility in Dobbs, so are they not doing originalism right? Are you saying that the court is political? Because that is all that I'm getting at: that "originalism" or not, the court is political, and we should stop pretending it's not.
Because no particular means are mentioned in the Amendment, nor in any of its predecessors in State constitutions, or in any of the arguments made at the time for including it. What is mentioned is the purpose the provision aimed to serve. "Original intent," BTW, does NOT require "mind-reading." In law, "intent" is ascertained by examining historical evidence --- arguments and reasons for a law or ruling articulated by its authors and advocates and for which there is a written record. The evidence for the intent of the right to keep and bear arms is voluminous.Astro Cat wrote:And who decided that intent doesn't include the means? How is that not a political opinion (since different people will have a different idea about whether means are included in intent, particularly based on what interests suit them)?
And I can't stress this enough, I'm not arguing against people having semi-auto weapons here. I'm trying to argue that the courts are inserting modern sensibilities into their rulings rather than going by an original intent. The Second Amendment is just the example I'm using to do that.
So this just seems like something that can philosophically disagreed upon. One person can say, "Well I think the intent can be updated with modern technologies as long as those technologies fulfill the original intent." That seems to be the tack you take. Another person can say, "The only thing that purely fulfills the intent at the time of writing is the capability of the technology at the time."
Remember that something not being covered by an amendment doesn't mean that it gets banned. It just goes to the states to decide, right?
Are you saying that it's completely unreasonable to suppose on originalism that the Second Amendment intends to cover muskets, whereas later types of weapons must go through the legislative process and be decided by the states?
If "originalism" really means that we can interpret the Constitution vaguely and include modern reasoning based on modern principles, isn't that a lot more vague than a more "pure" originalism? Doesn't that depend a lot more on who's wearing the robe than what's written down?
I'm not talking about morals, I'm talking dispassionately about what was intended by the writer. When the writer wrote it's OK to own guns, the writer was talking about muskets; that's the only thing the writer could have possibly meant. Bullets didn't even exist at the time!GE Morton wrote:Is it any more moral to own a weapon capable of killing only 1 or 2 people in minutes? How about bolt-action or lever-action rifles (non-semi-auto), which could kill 5-6 people in minutes? Any weapon can be used to kill people, and the advocates for the right to keep and bear arms, from 17th century English jurists to James Madison, were well aware of that. What limits on weapons would you suggest that would not undercut the purpose that Amendment was intended to serve? In general, we don't renounce rights or restrict liberties because they can be abused, even when we're certain some people will abuse them. We don't ban automobiles because drunk drivers kill over 10,000 people/year in the US (we tried banning booze, which caused more problems than it solved).Astro Cat wrote:I don't think it's a fatuous question at all to consider whether the writer of a document is thinking of the capabilities of technology at the time when they argue that it's OK for the private populace to own something. I feel like if we're going to be "originalists" then we need to actually consider what the writer was thinking of when they wrote down their intentions. Thinking it's OK for people to own muskets is absolutely not the same thing as thinking it's OK for people to own machines capable of killing tens of people in minutes. Now, maybe they would be fine with it. But aren't we kind of just playing games if we don't ask the question on "originalism?" And isn't that my point: that originalism is just taking the parts that we like of some kind of "full originalism," and leaving out the parts that we don't like?
It's important to note that what I mean by "it's OK to..." I mean that the federal government can't violate the right to.
Is it not obvious that Scalia agrees that the writers didn't "mean" sawed-off shotguns? Clearly that is saying that the writers didn't mean guns of any sort can't be federally regulated, or left up to states to decide. This "originalist" decided that there's a line in the sand somewhere. But he conjures it out of his own estimation (you even said yourself that the ability to regulate owning sawed-off shotguns is "mostly symbolic").
But a different set of people in robes can just up and decide that a different line in the sand is what the writers "meant" if we can do that.
The only outcome that's actually "originalist" is to say muskets are federally protected from regulation, since that's all that we know the writers intended, while everything else must be left up to states to decide.
Now again, I'm not advocating for this. I'm trying to show that originalism is either subjective to whom is wearing the robe or has unwanted consequences for nearly everybody. I think Scalia's opinion is fine. But I think calling Scalia's opinion "originalism" stretches the truth. That's all I'm getting at.
I agree with you, but what can be done when the people in robes are extremists with an axe to grind, and the legislative branch is at the mercy of 300 million roobs that practically think the Earth is flat and have no inkling of an idea what empathy or equality are?GE Morton wrote:The Court in Dobbs departed from "originalism," by not taking the 9th Amendment seriously. And that theoretical recourse --- democracy --- is certainly still available. Whether it will yield the result you (and I) would prefer is highly uncertain, however. That is the trouble with democracy. Personally, I'd prefer decisions about basic rights to be made by knowledgeable and perceptive scholars than by 300 million roobs, even though the former can also make mistakes.Astro Cat wrote: Then we have a broken country, why should we want SCOTUS to play by some vaunted rules if doing so will hurt people if those peoples' theoretical recourse is unavailable? What if we submit that whatever the court was doing, if it wasn't originalism, it was working to cause the most life, liberty, and pursuit of happiness?
I don't think the system you are lauding is actually any kind of "originalism," but that is maybe splitting hairs at this point. If doing their job and interpreting the 9th and the 14th is what they need to do, then I'm all for that. But again, this court is a heavily ideologically influenced court. We can't pretend they're non-political because they are.
People like me, we have no recourse. You say democracy, but all I'll get from democracy is having to pick a state that's more friendly to my rights. But I'm lucky to be in my 30's. What of all the young people that will be stuck in backwards states with no recourse at all?