Open Thread: Supreme Court Originalism

As I’ve said many times here before, I’m a big fan of Doug Muder, who writes a weekly packet of columns called the Weekly Sift, that comes out every Monday that he’s not vacationing. (You can find it down at the very bottom of our somewhat neglected blogroll on the right margin of your screen.) He published something today that was, once again, clearer than anything else I’ve seen in any media about how a recently decided Second Amendment case comported, more or less, with the principles of “originalism,” which now govern our Supreme Court jurisprudence, though often honored in the breach. It’s called “The Limits of Originalism.” I’ll give you a little fair use taste to get you through this likely hellish last week of the SCOTUS term.

Picture of the Dobbs court with the conservative justices surrounded by crying babies.  But this piece is not about that decision!
From our piece on the infamous Dobbs decision two years ago. Of course, Breyer has now been upgraded to the spiffy new Ketanji Brown Jackson model!

[The Supreme Court] decided that Congress does have the right to pass laws that take guns away from domestic abusers who are under restraining orders. Or, looking at it from the other side of the gun, men who have been judged by a court to pose a credible threat to their intimate partners do not have an absolute right to bear arms.

Good job, justices. With only one dissent (corrupt Clarence Thomas) they made the right call. Good for them. But why were they having that conversation to begin with? Why did anyone think that in one of the most obvious potential-murder situations imaginable [1], our legal system is banned from offering a woman even the simplest kind of protection?

In particular, why did anyone think it might be unconstitutional to disarm Zackey Rahimi, who perfectly exemplifies why domestic abuse laws exist? Rahimi didn’t just threaten the estranged mother of his child with a gun and then violate the restraining order she got for her own (and her child’s) protection, he also was involved in several other shooting incidents, some related to his personal anger-control issues and others stemming from his professional role as a drug dealer.

That reasoning is the judicial philosophy known as “originalism” which means something like — read the story why I have to equivocate there, because not even the Court seems to agree about what it really means and implies — we are bound by the understanding of the framers of a constitutional provision at the time that it was drafted, based upon the plain meaning of the text at that time. (That time is, mostly, 1789 to 1793 and then from 1865 to 1870. It’s their say what the Constitution means, preserved in amber — except now the court is saying “well, definitely NOT ‘preserved in amber, but …” and we will spend the next several years waiting to see how they finish that sentence.

Under Fair Use, I believe that I can claim one more paragraph from the piece in order to induce you to visit, so I’d better make it a good one! Oh, this looks good! And I can quote from Justice Sotomayor’s concurrence for free!

Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, see, e.g., R. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117, 2154–2170 (1996), it is no surprise that that generation did not have an equivalent to [the law Rahimi has challenged]. Under the dissent’s [i.e. Thomas’] approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.

Putting her point more bluntly: When the Second Amendment was ratified in 1791, women were not really people, and wives in particular were subject to the whims of their husbands in ways we no longer accept. So you’re not going to find much in the way of domestic-violence legislation from that era, much less laws disarming domestic abusers. But that’s because the founding generation just didn’t think domestic violence was a problem worthy of government action, not necessarily because they endorsed the right of dangerous people to be armed.

And … scene! If you want to understand why the current Supreme Court majority and its legal philosophy is full of (magic) beans, this is a pretty good place to start!

This is your “I forgot that we’ve needed an” Open Thread. You can talk about the SCOTUS or anything else you’d like, within reasonably bounds of decorum and discretion. (As a nod to the Court, this week I’m leaving out the Dignity.)

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)