I don't think Justice Thomas's approach is even good originalism. Originalism is supposed to decide cases on the public meaning of the text. But a constitutional text may have a broader or narrower scope than the regulatory framework existing when the text was adopted. There's no inherent reason to believe that when the Second Amendment was adopted, the meaning of that text was to preserve exactly the regulatory environment that then existed and to allow, in perpetuity, only analogous regulations.
There are any number of reasons--having nothing to do with the constitutional right to bear arms--why legislatures at the time may have not enacted certain gun regulations. Maybe guns weren't widely used in domestic violence crimes back then so there was no need to ban guns from domestic abusers. Maybe certain regulations would have been procedurally impractical at the time (e.g., gun registration). None of that means that such regulations would have been understood then (or should be understood now) as inconsistent with the constitutional right to bear arms. By insisting that every gun regulation must have a historical analog to a regulation existing at the time of the Founding, Justice Thomas is interpreting the 2A text as constitutionally codifying the existing regulatory framework in 1789. That's not originalism. That's creating a law trapped in amber.
Justice Thomas's approach isn't even consistent with Justice Scalia's originalism, which required "not just history but judgment" and the application of underlying constitutional principles:
"What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections.
In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded." McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 375 (1995) (Scalia, J., dissenting).
What a magnificent essay to elucidate the fundamental difference between deploying data points in applying Constitutional Principles as “trapped amber” [John Roberts] - a translucent fossilized resin produced by extinct coniferous trees in Neolithic times - in circumstances and conditions that have vastly changed.
Apart from the physical FACT that 2024 is not 1791 when 2nd was ratified, a domestic violence perpetrator is the precise opposite of “well regulated” by the least stringent of psychological testing; as well, a domestic violence victim is not a Red Coat by the most feral imagination even if he or she were to don a fire-engine red jacket.
Let alone for “data points” in his legal methodology, Thomas selected irrelevant points to rationalize his dissent opinion. In 1791, domestic violence did not come under the penumbra of 2rd Amendment protection.
I mark these words by the Prof: "The classical approach holds that principles are enduring, but that as circumstances change, doctrine must itself “change in order to remain the same”
I reiterate the central point of the essay: “The elaboration and development of rational principles underlying the constitutional tradition, principles that are external to the judge because they are immanent in the tradition itself, and are thus not reducible to the judge’s own ‘preferences’, but that are also intelligible to legal reason and identified by irreducible legal judgment.”
Yes, heartening indeed to see not only a classical approach reappear at the Supreme Court, but finally to see that the FACTS surrounding the enactment of the 2nd are visible to the men and women in the Highest Court are within normal limits of what I personally regard as common sense and sensibilities.
I don't think Justice Thomas's approach is even good originalism. Originalism is supposed to decide cases on the public meaning of the text. But a constitutional text may have a broader or narrower scope than the regulatory framework existing when the text was adopted. There's no inherent reason to believe that when the Second Amendment was adopted, the meaning of that text was to preserve exactly the regulatory environment that then existed and to allow, in perpetuity, only analogous regulations.
There are any number of reasons--having nothing to do with the constitutional right to bear arms--why legislatures at the time may have not enacted certain gun regulations. Maybe guns weren't widely used in domestic violence crimes back then so there was no need to ban guns from domestic abusers. Maybe certain regulations would have been procedurally impractical at the time (e.g., gun registration). None of that means that such regulations would have been understood then (or should be understood now) as inconsistent with the constitutional right to bear arms. By insisting that every gun regulation must have a historical analog to a regulation existing at the time of the Founding, Justice Thomas is interpreting the 2A text as constitutionally codifying the existing regulatory framework in 1789. That's not originalism. That's creating a law trapped in amber.
Justice Thomas's approach isn't even consistent with Justice Scalia's originalism, which required "not just history but judgment" and the application of underlying constitutional principles:
"What we have, then, is the most difficult case for determining the meaning of the Constitution. No accepted existence of governmental restrictions of the sort at issue here demonstrates their constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections.
In such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to whether the government action under challenge is consonant with the concept of the protected freedom (in this case, the freedom of speech and of the press) that existed when the constitutional protection was accorded." McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 375 (1995) (Scalia, J., dissenting).
What a magnificent essay to elucidate the fundamental difference between deploying data points in applying Constitutional Principles as “trapped amber” [John Roberts] - a translucent fossilized resin produced by extinct coniferous trees in Neolithic times - in circumstances and conditions that have vastly changed.
Apart from the physical FACT that 2024 is not 1791 when 2nd was ratified, a domestic violence perpetrator is the precise opposite of “well regulated” by the least stringent of psychological testing; as well, a domestic violence victim is not a Red Coat by the most feral imagination even if he or she were to don a fire-engine red jacket.
Let alone for “data points” in his legal methodology, Thomas selected irrelevant points to rationalize his dissent opinion. In 1791, domestic violence did not come under the penumbra of 2rd Amendment protection.
I mark these words by the Prof: "The classical approach holds that principles are enduring, but that as circumstances change, doctrine must itself “change in order to remain the same”
I reiterate the central point of the essay: “The elaboration and development of rational principles underlying the constitutional tradition, principles that are external to the judge because they are immanent in the tradition itself, and are thus not reducible to the judge’s own ‘preferences’, but that are also intelligible to legal reason and identified by irreducible legal judgment.”
Yes, heartening indeed to see not only a classical approach reappear at the Supreme Court, but finally to see that the FACTS surrounding the enactment of the 2nd are visible to the men and women in the Highest Court are within normal limits of what I personally regard as common sense and sensibilities.