This is a follow-up to my derisive post concerning abortion and gun control legislation concerning a decision in which SCOTUS attempted to invent and hide behind a test called History and Tradition, as advanced by Erick Erickson, and I shot it down.
The followup is that Associate Justice Brown has advanced an analysis, as part of her questioning of attorneys in Wolford v. Lopez, that exposes History and Tradition’s weaknesses, as discussed by Madiba Dennie at Balls and Strikes:
Wolford v. Lopez is the Court’s second confrontation with the absurdities produced by Bruen’s embrace of originalism, the idea that the Constitution has one true, historically discoverable meaning. At oral argument on Tuesday, the Republican justices were deeply disturbed that Hawaii defended its statute in part by pointing to an 1865 Louisiana law that prohibited people from entering private property with guns “without the consent of the owner or proprietor”—a statute that lawmakers originally adopted in order to disarm Black people. Nodding to the genesis of the “vampire rule” nickname, Justice Neil Gorsuch marveled at the fact that “a lot of people” who would normally react to historical anti-Black laws like “garlic in front of a vampire” are now citing them to promote gun restrictions. “I’m really interested in why,” he said.
The Bruen opinion, which Gorsuch joined, contains the answer to his question. State lawmakers digging up historical gun regulations to justify modern gun regulations are simply doing what the Court told them to do. It is not their fault that many historical gun regulations are racist.
The History and Tradition test contains an implicit belief that the past is the location of excellence, a belief that falls apart the moment it’s examined. Our advances in everything from tangible science to moral reasoning renders that implicit belief moronic and is the mark of people who fear change and how it’ll impact their social standing. Decisions must withstand reasoned argument on their own and throw that damn robe on the all-consuming fire.
Sorry, that’s a bit harsh, but this software engineer is just callin’ them as he sees them.
