While I am not supporter of Carlton Reeves' bottom line, I do understand his frustration with the half assed originalism used in NYS Pistol

Politics Second Amendment
1

Frankly, I understand Reeves’ frustration. NYS Pistol created a ridiculous standard of review that was entirely unnecessary.

ALL that was necessary was to reiterate that THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED, apply a strict scrutiny standard and keep the ■■■■■■■ history out of it.

That was all that was needed. TEXTUALISM.

But no, they had to go the originalist route and now we have a total cluster ■■■■ brewing.

A Federal Court has already struck down a Federal law prohibiting possessing of weapons by those under felony indictment.

Now we may very well see the law against convicted felons in possession struck down.

Reeves is right on one point to be sure. Lawyers and Judges are not historians and should not have to play historians to decide cases.

There was no need for the originalism. The Constitutional text was unambiguous.

THE
RIGHT
OF
THE
PEOPLE
TO
KEEP
AND
BEAR
ARMS
SHALL
NOT
BE
INFRINGED.

Nothing ambiguous in the slightest. A textualist reading would have taken less than a second.

All that was necessary was apply a mandatory strict scrutiny standard and all would have been fine. Because the language was unambiguous, there was ZERO REASON to inquire into either the history or the intent of the framers.

When the Constitution or a statute is unambiguous, you go with the text and ignore the rest.

Instead, we have the real possibility that courts will have to appoint historians to track down the historical record on the issue.

Because Thomas wanted to play originalist games.

Here is a bit of advice to you, Mr. Justice.

Keep it simple stupid.

Stop with the originalism and stick with textualism.

Had you done so, RKBA would be protected, but we wouldn’t be looking at arming felons.

Unfortunately, the Supreme Court may very well have to turn around and undo NYS Pistol and replace it with a textualist based decision that lower courts can actually rationally follow.

Hate to say it, but Thomas screwed the pooch with this one. And it was a 100% unforced error and 100% unnecessary.

Yes, I am an unapologetic textualist.

Runaway originalism is just as bad as living constitutionalism.

ONLY where the text is ambiguous should history or intent be discerned. And only as much as is necessary to resolve the ambiguity. No ambiguity, follow the ■■■■■■■ text.

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I would say prohibiting felons from possessing a weapon is unconstitutional. Stupid to do it anyway, if you are too dangerous to own a gun you should be kept in prison. Reason, guns are far from the only way to kill someone.

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Addressing this issue, which is the underlying issue in the present court case.

I cannot agree categorically with this statement.

I would be open to restoring the right categorically to those convicted of non-violent, non-sexual, non-drug offenses.

For violent, sexual and drug cases, clearly a long hard look would have to be taken at each individual offender, their life history and the circumstances of their offense.

Regardless of what one might think about dangerous people being released from prison, we use defined sentences in this country, ensuring that these people will leave prison at some point. They will probably obtain weapons and go back to their previous behavior, but in that case, better their weapon possession is left illegal, thus upping their prison terms if/when they return to prison.

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All rights should be restored at the end of the sentence. If certain crimes make someone too dangerous to own a gun after they finish their sentence, change the sentences for those crimes to life. Guns are not remotely the only way to kill people and getting one illegally isn’t hard.

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And we can already see the slippery slope, red flag laws anyone?

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If they served their time, they’re either free or they’re not.

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I take it you are unaware of the most fundamental rule of constitutional construction, and that our very Constitution recognizes and commands that “the rules of the common law” shall be observed. Did you know abiding by legislative intent is perhaps the most fundamental rule under the “rules of the common law”?

”. In a newspaper article published in the Alexandria Gazette, July 2, 1819, Chief Justice Marshall asserted he could “cite from [the common law] the most complete evidence that the intention is the most sacred rule of interpretation.”

It should also be pointed out that the notable Justice Story, in his Commentaries on the Constitution of the United States (1833) wrote: “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.”

And let us not forget that our very own Supreme Court, in Hawaii v. Mankichi, 190 U.S. 197 (1903), confirms the historical validity of enforcing legislative intent:

”But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”

This very rule concerning legislative intent is also stated by Jefferson in the following words:

“On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

And the noteworthy Chancellor James Kent, in his Commentaries on American Law [1858] confirms the truth of the matter as follows:

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.

In fact, being obedient to the documented legislative intent of our Constitution was acknowledged in HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)

”The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.”

And where is our Constitution’s legislative intent to be found? It is found by researching the debates during which time our Constitution was framed and ratified, e.g., Madison’s Notes on the Convention, Hamilton’s Notes, The Federalist and Anti-Federalist Papers, Elliot’s Debates, etc., are some of the sources used to document the legislative intent of our Constitution.

JWK

Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records ___ its framing and ratification debates which give context to its text ___ wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

8

They shouldn’t have made him wait so long.

9

As they used to say about Roe: “good decision, bad law”.

Oh well. He probably only has a decade or two left on the bench. Hang in there.

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Welk gosh, Saf: are we textualists or not? A strict textualist reading doesn’t support any of this.

11

Agreed.

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Judge is a crit prog trying to raise eyebrows. He’s playing the “which history do I follow” game.

Serve your time, rights restored. Quit putting a color on it.

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While I agree with the second sentence, the first is arguable. The Constitution does allow suspension of Rights through due process. Loss of Rights, however, should be specifically spelled out for that individual in the sentence given at the time of conviction, appropriate to the crime for which they were convicted, not applied across the board on everyone convicted of a Felony. Personally, I don’t think anyone convicted of a non-violent felony should be in prison. There are better (and much less expensive) ways to impose punishment on criminals who pose no disproportionate (compared to non-criminals) physical danger to others.

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What judge? I’m talking about Thomas.

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Judge Carlton Reeves, in the op article.

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I was talking about Thomas.

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Let’em get a gun, but by all means keep them away from the voting booth!

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It is undisputed that the government, via due process, can take away the ultimate right, the right to life.

If they can do that, they can take away any subordinate right, either permanently or for a set period.

They can take your right to liberty for a designated period.

They can take your right to vote.

They can take your right to keep and bear arms.

Nothing unconstitutional in any of that, as long as it is done with the utmost due process.

What we can argue and what I would consider is whether we SHOULD scale back these components of punishments for certain crimes.

For crimes of murder and rape, even if the offender does get out of prison, I would oppose restoration of any rights.

On the other hand particularly for nonviolent, nonsexual crimes, I would be willing to go as far as automatic restoration of rights.

Rehabilitation of offenders is an aspect of justice in this country, so that practice would be consistent.