Many of you know that I fully support the result of Bruen. I think that every law abiding citizen should be able to own guns and to carry a pistol for self protection in the public sphere.
However, the Court did not justify its holding in the opinion. I have complained about the reasoning in Heller previously. Bruen compounds the legal error. Several issues:
Why are we back in ye olde England? The BOR was written to prevent many abuses of the Crown. It doesn’t matter what they said, even if favorable.
Why are we pre-1868 looking at state cases? The BOR didn’t apply to states then.
The cites are selective. We look at 20 pro-gun cases and 20 anti-gun cases and then dismiss the 20 anti-gun cases because they are not consistent with the holding of the Court. That is terribly circular.
The Heller ipse dixit about “longstanding prohibitions” remain. The Sullivan Law is more longstanding than prohibitions against felons owning guns or school gun possession. In my state, it was only 1994 when there was a law against guns in schools. A mere 14 years before Heller. How is that longstanding, but the Sullivan law isn’t?
New restrictions must have an historical analogue. What is an analog to an airplane in 1789? I’m all for originalism and textualism but following those ideals doesn’t mean that the framers would have considered themselves powerless to legislate regarding new scenarios unlike what they knew.
So, I think the left could possibly celebrate as like Roe, Bruen left itself ripe for overruling because of its poor reasoning. And this comes from a guy who would vote for a law largely like one Bruen requires.
Point 1: 2(i) seems to dismiss the reliance that Bruen used on English law. Thomas’ detail is just to back that up. Basically Bruen relied on English Law so the Justices addressed it.
2(i) Respondents’ substantial reliance on English history and custom before the founding makes some sense given Heller ’s statement that the Second Amendment “codified a right ‘inherited from our English ancestors.’ ” 554 U. S., at 599. But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection.
Point 2: This part goes to directly contradict Bruen’s claim that pre-1868 the gun regulations were very restrictive.
Point 3: I’m not sure where you see that. Are you talking about the cases throughout the opinion or is there a specific section you are referring to?
Point 4: The only allusion to Heller and “longstanding” is in regards to sensitive places. The only place “longstanding prohibitions” is used refers back to Blackstone and the 19th century.
Point 5: I’m not sure where you are going with that. Suffice it to say that states that require “proper cause” use that distinction solely to deny gun permits and hence ownership of guns.
You mean Heller. That remains a problem with Heller. The BOR was not there to incorporate English law. It was there to repudiate its abuses. We could look at pre-revolutionary English law and say that general warrants and writs of assistance were a part of our common law heritage. They absolutely were, and we passed the Fourth Amendment to rid ourselves of them.
In the same vein, the English disarmed the people so that they could not form militias to threaten the Crown. Why do we try to see what they disallowed as support for the Second Amendment? It is not internally consistent. If Respondents made the argument, the Court doesn’t have to engage.
But many were decidedly against public carry of firearms. And yes, throughout the opinion. The Workman decision from 1891 out of my home state, West Virginia, way before any modern gun control laws, and in a state that loves guns, held that the Second Amendment was for rifles and militia purposes,“-and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desperadoes, to the terror of the community and the injury of the State.” State vs. Workman.
It was discounted solely because it didn’t comport with Heller which discounted it because it didn’t comport with the Court’s opinion in Heller. Very circular.
Right. So if we have a base on Mars, guns cannot be restricted there because there was no interplanetary ban on guns in 1789. But guns in schools can be banned because of a 14 year old prohibition. But a 110 year law is not well established. It is nonsensical.
I agree, but the opinion did not justify this statement.
No I don’t. I mean what I said. The State relied on English history and rather than saying, “Does not apply in the US.” the Justices felt it necessary to say the state was wrong in it’s interpretation of pre-independence English law.
Which is unimportant. The State claimed that by and large the state laws were restrictive and the opinion says that in toto no they weren’t. So again, another item New York relied on was incorrectly interpreted.
Who said that? Not I. You said that the opinion linked Heller and “longstanding prohibitions”. I just pointed out that I didn’t see that specific construction and “longstanding prohibitions” was linked to other things in the opinion. AND that the reference to Heller and longstanding had nothing to do with what to you claimed it did but was another topic altogether.
Apologies. But in what other context do we cherry pick a law enacted in the 1300s, with questionable followup, and use it for debate over what that means for 1789 or 1868 or 2022? Why do the issues of Northampton, England in 1380 have to bear on carrying guns in NYC? Especially when our BOR was to prevent abuses of power which the Northampton statute seemed to be to keep a corrupt king in power. Why do we analyze that?
Keep in mind that I am not against using history as a guide. A continuous and undisputed practice of banning something is good evidence say for murder or rape. Cherry picking the Statute of Northampton is an exercise in which made for a poor opinion.
Why does it matter what the majority of the court decisions held? The fact that there was a disagreement should lead to the conclusion that the right to carry guns in public was not a well-established belief in the 1800s and should be left to the democratic process. But the Court did a rather amazing thing. It said that these decisions are of no import because they are not consistent with Heller. Heller did the same thing in a self-referential way.
So then, we embrace they pro-gun decisions as if they were handed to Moses on stone tablets, but we reject the anti-gun decisions because they conflict with what we said three paragraphs ago. It is Roe in its poor legal reasoning.
It was a salient point. Any further gun restrictions must be support by history or their technological analogues. Much like how the founders didn’t have cell phones, we must view the search of a cell phone under 1789 principles. That is fair enough because we can say that cell phones are like paper documents carried in a handbag.
But we didn’t even have railroads in 1789. How is a subway to be viewed? And underlying all of it is that nobody ever proposed gun control to combat crime. Is that an illegitimate means because nobody thought of it 200 years ago?
I don’t know why you insist that I’m arguing your points. I’m just pointing out that your characterization of what the decision said is full of inaccuracies or that I cannot find the same points in the opinion that you are claiming.
If you want it, here’s my take on it. Judges use twisted and illogical arguments to rule however they want to rule? Welcome to American jurisprudence. I’ve seen the same shit in family court and traffic court too. No big surprise when judges are not held accountable for their rulings and how they got there.