In Lochner v. New York, the Supreme Court struck down a New York law limiting the hours worked by bakery employees.
New York had sought to limit the hours that bakery owners could require their employees to work – no more than 10 hours a day and 60 hours a week. The bakery owners challenged this law, and the Supreme Court found that it violated the “freedom to contract,” that is implied in the Fourteenth Amendment:
In Church of the Holy Trinity v. US, the Court interpreted a Congressional statute that provided, “[A]fter the passage of this act it shall be unlawful for any person, company, partnership, or corporation. . . to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States. . .under contract or agreement. . . to perform labor or service of any kind in the United States, its Territories, or the District of Columbia.”
Despite this law, the Church of the Holy Trinity entered into a contract with one E. Walpole Warren, admittedly an alien, a foreigner from England, to move to New York and serve as their rector and pastor. The federal government charged that the Church violated this law.
The Supreme Court disagreed:
Both of these took plain text sections of law and read into them substantive changes that were not there, out of an apparent belief that the law would be BETTER if those changes were added.
And if your claim had been that a modern gun and a WOI-era musket were both a gun, I wouldn’t have had a problem with it. Your claim was about the character;
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the arms of today are not different in character than the arms which the adopters of the Second Amendment knew.
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You and I are both humans. Yet we may have very different characters. A Chevy Bel Air and a Prius are both cars. Yet they may have very different characters - and, indeed, I would argue that this is so.
Do you consider a Chevy Bel Air and a Prius to have the same character?
Is a Model 1913 Cavalry saber really that similar to an Egyptian bronze sword from 1300 BC? There are a myriad of improvements and material changes (bronze to iron to steel), design changes and improvements, but at the end of the day, they’re both swords. Probably more incremental changes and improvements have been made to the design and construction of swords than to guns over that time period, but nobody would argue that they’re not the same thing.
Guns are exactly the same. Gunpowder of some sort is ignited in a confined space, and the resulting deflagration creates pressure which pushes the projectile out of the gun’s barrel at a high rate of speed.
Stuff like smoothbore/rifled, black or smokeless powder, match vs. flint vs cap vs. cartridge (and Berdan vs. Boxer priming), corrosive vs. non-corrosive, ball vs. bullet, single shot/bolt-action/semi-automatic/fully automatic, walnut furniture vs. plastic, and all the other things are details that don’t change the inherent nature of what the gun is.
It’s like looking at a McLaren sports car and a Model T, and declaring that the McLaren is no longer a car, because it’s so different than what Henry Ford made. Or that a 787 isn’t an airplane because it’s so different from the Wright Flyer. Similarly, claiming that a L85 is not the same thing as a Brown Bess is absurd in that same light. Yes, they’re very different, but they’re both military rifles used by the British Army of their time and place.
I do not consider the evolution of guns and the courts interpretation of the second amendment to still cover them to be an unreasonable interpretation, but I do consider it to be an interpretation.
Just as freedom of speech is interpreted to include all the forms of communication that are not literally speech is a reasonable interpretation, but still and interpretation.
Activist judges are ones who interpret how the changes in society and technology interact with the constitution in ways that gore your particular ox, making you (royal you) feel that it is not a reasonable interpretation.
I am not saying that it is an unreasonable interpretation to include technologies that were not envisioned by the ones who penned the amendment, but that it is in fact an interpretation.
While I agree that the 2nd could use some updating and clarification, it’s easier to say than to do.
That’s interesting, I did not know that repeating rifles were around that early. A little research turns up these2, I assume that’s what you were talking about. But, they were very expensive, very prone to failure, and new enough that it is likely that they were not really something on the founder’s minds.
A musket at the time would have cost $700-$1200 in today’s dollars. (Yeah, I know it’s a weak cite, but it was the best I could find, I am happy if you have a better one.) That’ll get you a reasonably high end firearm now. I could not find any cost cites for the repeaters, but I would reasonably assume they would be much more. For less than $100 at a pawn shop, I can outfit myself with a weapon pretty much inconceivable to the wealthiest of the elite of the time.
The mass school shooting was more an act of aggression from the native americans than the type of mass shooting we think of today, if nothing else, it required the actions of 4 individuals to kill the 10 or 11 people murdered in the incident, much different from a single shooter with a modern repeating firearm.
My point in all of this is not to say that interpreting the modern character of firearms to be covered under the same amendment as weapons of a completely different character is wrong or unreasonable, just to say that it does require some level of interpretation. We interpreted that you cannot own certain weapons, and that you can own some others.
If the second amendment were to taken completely literally, with no interpretation as to the changes in firearms technology, then you would have to either not allow any weapon that was not in existence at the time of the founding, or allow any weapon of any and all types, depending on whether you were an originalist or a textualist, respectively.
And to the point of the thread… The courts are going to have to interpret law. Society and technology will change, and either the constitution, the law, or the courts need to keep up with it. The courts, of those three, are the most flexible, and most able to adapt to the times.
Do you feel that both cars should exist under the same set of regulations?
Do you feel that a set of regulations created at the time of the model t would be appropriate for regulating the use of a modern sports car?
Speed limits set, qualifications for a permit, and allowed emissions, if set at the time of the Model T, would make no sense whatsoever with modern cars. If an amendment had been passed at the time involving cars, it probably would not be relevant to the cars we have today.
But when we look to judges to do that, instead of the legislature, we damage our notion of self-governance. Federal judges are not elected. They serve lifetime appointments. Vesting that kind of power in their hands is not consistent with the view that our government is in the hands of the electorate.
Modifying amendments is pretty hard. It’s only happened, what, 27 times (less, if you count the bill of rights as one big change), in the last 250 years?
The second amendment should be changed, if only to get rid of one of those commas that don’t make any sense, but even that change will never happen, much less any sort of thing that would keep up with the times.
Do you feel that the second amendment should allow for people to keep and bear any weapon that could be considered an “arm”? By textualism, that should cover everything from pistols to rifles to cannons to artillery to tanks to planes to bombers to nukes. All of those are a form of armament, it is interpretation that limited it to things that are man-portable, it is interpretation that does not allow for nefarious devices or weapons of mass destruction, it is interpretation that allows for strict regulation of fully automatic rifles. I have heard arguments against all of these interpretations. (For naive strict textualism, it only means that the government is not allowed to dismember its citizens above the waist.)
Now, as far as judges go, I’ll get behind getting rid of lifetime appointments. Once again, times change, and a lifetime appointment in 1776 was probably going to be less than 20 years. This Gorsuch guy, who is only 49, could very well be on the bench for 40+ years (modern medical technology, with his economic class, there is no reason he couldn’t make it past 100, and still be active enough to be a justice till then). I’m of mixed minds as to whether they should be elected directly, as they are in most (all?) states, or appointed by elected officials, as was determined to be the best course for maintaining checks and balances by the writers of the constitution. I take it you disagree with the method that the constitution lays out for the appointment of federal judges, so maybe that is something that can be looked at to be changed while we have the hood open. (I kinda like the 18 year term, with new justice being appointed or elected every 2, but I am open to different ideas.)
I also have no problem with judges invalidating laws that the court determines to be unconstitutional, as they have in roe v. wade or obergefell vs hodges, or even the heller decision, as that is a check against the legislature, and is pretty much literally their job (assuming that you don’t also feel that maybury v madison is over reach). I suppose I have a bit of a problem with them “writing legislation” from the bench, but I have yet to have seen an example of that that actually seemed to me to be actually creating new law rather than a reasonable interpretation of existing law. (As reasonable as the interpretations of the first, second and fourth amendment keeping up with our times [as a literal interpretation of the fourth wouldn’t give any protections to electronic communications])
Judges not interpreting amendments differently when their implications significantly change due to technological or societal changes damages the notion of self-governance.
To be fair all of our rights are circumscribed to some extent. No right in the constitution is deemed to be absolute. Even free speech has limitations. The 4th amendment has been so thoroughly gutted over the years it is getting close to useless and I am willing to bet the FFs would be pretty upset to see where it is at today. Both conservative and liberal courts have interpreted and restricted (or expanded) what the constitution says. Neither side can lay claim to some judicial purity on this.
I have to ask for clarification on this. I thought you were using this as an example of a judge correctly taking a literal reading of the law? So do you think this ruling was incorrect then, is incorrect now, or is correct? Because almost everyone in the US currently has access to an “infrared visor”, more commonly known as a “cell phone camera”. (this feature may be temporarily disabled by the manufacturer, but can be user-enabled just by replacing the lens in front of the electronics.) I had a cell phone with camera in 2001, so this is even less development than happened with arms. So this judge is rejecting a literal meaning of the amendment.
(Disclaimer: I feel the logically consistent position is that the primary duty of a judge is modifying a law or amendment by applying it to a specific case, but some degrees of modification might go too far. Dunno if a judge or a legislature should decide what is too far, though. I also wonder whether driver’s licenses infringe the 2nd amendment because they limit our use of temporarily disarmed “wagons enabling use of arms too heavy to be transported by one person”)
Curiously, I’m reading a mid-1800s book on legal theory somewhat discussing this. Henry seems to be implying that if we had based legal theory on earlier sources (Rome 200 BC vs Rome 100 AD?) then a literalist interpretation would be the opposite of normal/typical.
The issue is not in cases where the Constitution is specific (for example fixing the number of representatives in Congress). The issue is where underlying words change their meaning over time. In the car example, what if the Model T Amendment stated “cars can only travel at a reasonable and prudent speed.” Should that speed scale upwards as car technology and safety advances, or are we stuck at the 30mph that a Model T could travel?
An non-gun real-world example: defining “limited time” in the copyright clause (not asking for a precis of Eldred v. Ashcroft here, just pointing it out…)
Cars, being slower than and more limited than horses, the right for horses to access, use, and determine proper behavior on public byways shall not be infringed.
The NHA (national horse association) fights laws setting minimum speeds, private ownership of watering holes, and laws about horse outputs.
No, I disagree. Unelected, lifetime-appointed judges making any substantive change is the damaging element. If societal or technological changes alter the implications of any existing law, the elected legislature is the body to address it. That’s what self-governance means: the elected legislature, directly responsible to the voters, makign new law.
Once the implications are altered, a judge deciding to defer to the text is taking the power to address that out of the elected legislature’s hands, at least within the boundaries of that case and precedent.
If substantive change has already happened due to changes in technology or society, a judge saying “We go by the text as already written” is deciding to make substantive changes to the law.
Does it also mean judges making decisions based upon those laws made by the elected legislature?
The law is literally different for those two example vehicles. Granted this is state, not federal law, but I’m sure other states have similar laws. But that is an example of the law applying differently to two vehicles based solely on the year of manufacture.
No. There have been changes to the factual circumstances the law addresses. Not changes to the law.
“Based upon?” It depends on whether the decisions are in fact based upon the law, or “based upon” the law like “Starship Troopers,” the movie was “based upon” the book.
It’s not a binary calculus, to be sure, but the more ad hoc changes are made in the “basing,” the less grounded the action is in our notions of self-governance.
I suspect I will find he was speaking of rights that were not already in existence. More broadly: if I assert I have a right to mopery, how do you know if my claim is legally correct? What informs the legal determination that I have a right to mopery?
Keep in mind, that these unelected judges are appointed by people who are elected, so it’s not as if there is no responsibility to the electorate.
But, in any case, I would like to see an example of what you are talking about. I hear it all the time, that judges are making new laws, but I have not seen an example.
So, you are saying that they should both be regulated exactly the same way, and that any regulations that were developed to address the Model T and the needs of that time should still be the regulations that govern a modern car?
