Originally published at: The Supreme Court’s ‘History and Tradition’ Test Just Ran Into America’s History and Tradition of Anti-Black Racism - TPM – Talking Points Memo
The Supreme Court heard oral argument on Tuesday in Wolford v. Lopez, a case about whether states can ban people from carrying concealed firearms on private property without getting the owner’s consent. Under the Hawaii law at issue, any armed person who wants to enter a shopping center, restaurant, or other privately owned property that is open to the public…
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- Let that sink in.
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So these guys are saying that the history and tradition that counts is the history and tradition that we agree with now. But the whole point of the “history and tradition” test is that we don’t know shit now; we have to defer to the wisdom of our ancestors to understand what the law means and what it requires. This is so blindingly incoherent, but that’s the Roberts Court for you.’
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It’s hilarious that DOTrump lawyer Harris is making claims that some laws (anti-black ones in this case) should be considered unconstitutional at birth. Does she not know who she represents?
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My god – they are so so very close to getting the point, and yet….
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Writing for the eight-justice majority in United States v. Rahimi, Chief Justice John Roberts explained that lower courts had “misunderstood” Bruen , and that modern gun safety laws need only a historical “analogue,” not a historical “twin.”
My language skills are poor when it comes to the Calvinball 6 (Calvinish?) but I think I got this:
Because we make sh*t up based on what we like (precedent be d_mned) we wrote a stupid decision that if carried to its logical conclusion may bite us in the a$$ politically. We will now issue an equally stupid decision so the voters would crucify us at the polls.
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For years a number of conservative Federalist Society judges such as William Pryor along with judges Michael Luttig and Jay Bybee took the traditional originalist view, what could be called “history and tradition” where restricted the carrying of weapons in public places. They based their logic on English common laws going back to the 12th century which banned the carrying of spears and knives. There were also restrictive firearms laws in the old west. “Check your gun at the door” became a requirement in saloons and hotels.
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Black Codes should have been unconstitutional “from the moment of their inception”
I love the logic of this argument. It took Constitutional Amendments, the Reconstruction Amendments, to overturn Dred Scott. But imagine the country without other misbegotten decisions, like Plessy v. Ferguson, blessing racial segregation, had such practices been found unconstitutional at the moment of their inception — instead of many decades later? The mind reels, Trumpist lawyers playing fantasy football with history. Too much to consider! It’s like a Zen koan, fully beyond cognition. Snap!
(Parenthetically, “Trumpist lawyers playing fantasy football with history“ likewise describes the SCOTUS conservative majority. And playing as loosely with mere facts: District court evidence? I don’t have to contemplate your stinking evidence!)
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Yes, they had just lost the war, but then they won (Black Codes & terror), and then they lost (Reconstruction), and then they won (withdrawal of federal troops), then after decades they pretty much lost (Brown vs Board of Ed, Voting Rights Act) but it’s still ongoing, leaving it to all of us to do our parts –
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I admire Justice Ketanji Brown Jackson, her reasoning seems to always reveal the pretzeled “logic” the conservative justices continually make.
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That is because she is miles and miles smarter than these preening frauds in black robes who think that they rule the world.
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The insane part is the concept of having “lost" rather than expanding citizenship rights. Alas, the war goes on.
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In other contexts, conservatives worship a landowner’s ‘right to exclude’. Hawaii’s law is pro-landowner by not making their rights subordinate to a government-authorized intrusion on those rights.
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So it’s OK to cite people who claimed to believe in witches when you’re making decisions against women, but not OK to cite people who wrote facially neutral laws about property when making a ruling about white guys with guns.
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