Supreme Court has voted to overturn abortion rights, draft opinion shows

[Josquius]

Just when did this second amendment means zero gun laws allowed stuff begin to emerge?
It was in the second half of the 20th century right?

[Sheilbh]

Gorsuch's opinions in the tribal cases aren't about originalism; they are about the sanctity of contract.  His view is the US made a deal with the tribes and shouldn't be allowed to go back on it.

Also textualism, no? This is what it says - so that's what it means.

Same with the Bostock decision.

[The Minsky Moment]

It's not really about textualism because the text doesn't decide the case, as often happens. The issue is really about what standards of pre-emption should apply to state action in tribal territories.  The majority applies the ordinary standard which is that state law applies unless explicitly pre-empted.  Gorsuch in the minority argue for a reverse standard - state law is pre-empted unless explicitly applied by federal legislation.

Gorsuch reaches his view not because of some specific text in a treaty or the constitution but because he believes that recognition of tribal sovereignty is inherent and implicit in those acts.  His opinion mentions the phrase tribal sovereignty 17 times.  The majority doesn't acknowledge it even once.

[alfred russel]

You are stating the matter backwards.  New York is not contending that its regulation is necessary for regulating a militia; it is contending that its regulation in no way impairs the operation of a well-regulated militia and thus is not prohibited by the amendment.

New York is also contending that nothing in the text of the amendment and nothing in its history or its interpretation requires a state to allow the concealed carry of firearms.

Throw out all the history. I'm not in any way arguing the merits of the case. I'm objecting specifically to Berkut's post, and of that post only the textualist part (not the originalist) "You think a textual/originalist reading of the Second Amendment supports overturning a law that has been on the books for over a century? The the "textualist" reading somehow ignores the actual plain English text itself?

Sorry, I don't buy it. If he actually believe in "textualism" or "originalism" he could no possibly conclude that the Second Amendment somehow doesn't include a third of the words in the Second Amendment."

If you just look at the text of the amendment it isn't clear why you should presume that the infringement of the rights of the people to keep and bear arms is acceptable so long as it doesn't impair the operation of a militia.

[Barrister]

Speaking as an outsider it's a very confusing provision, and I can see the merits in how both sides read it.

[Sheilbh]

It's not really about textualism because the text doesn't decide the case, as often happens. The issue is really about what standards of pre-emption should apply to state action in tribal territories.  The majority applies the ordinary standard which is that state law applies unless explicitly pre-empted.  Gorsuch in the minority argue for a reverse standard - state law is pre-empted unless explicitly applied by federal legislation.

Gorsuch reaches his view not because of some specific text in a treaty or the constitution but because he believes that recognition of tribal sovereignty is inherent and implicit in those acts.  His opinion mentions the phrase tribal sovereignty 17 times.  The majority doesn't acknowledge it even once.

Okay fair enough.

I still think from what I've read by him and about his decisions that he seems to be a judge with a philosophy (which I disagree with) applying that when interpreting the law - in a way that I just don't think Alito and Kavanaugh are. He might actually be the most conservative but he seems like a legitimate "judicial" appointment rather than just a hack.

[Sheilbh]

Speaking as an outsider it's a very confusing provision, and I can see the merits in how both sides read it.

Yeah - agreed.

[alfred russel]

Speaking as an outsider it's a very confusing provision, and I can see the merits in how both sides read it.

At the time it didn't matter because before the civil war the bill of rights wouldn't have constrained the states, and they would have been the ones responsible for gun control. If the federal government was interested in arms limits it probably was for some nefarious / military oriented purpose, hence the amendment. The authors weren't thinking of the amendment one day applying to states, or the federal government one day concerned about school shootings.

[The Minsky Moment]

If you just look at the text of the amendment it isn't clear why you should presume that the infringement of the rights of the people to keep and bear arms is acceptable so long as it doesn't impair the operation of a militia.

To start with, I think your formula assumes that a regulation of concealed carry is an "infringement of the rights of the people to keep and bear arms".  New York (and others) would dispute that.

The problem with a textualist approach to the Second Amendment is that the text by itself is inherently ambiguous.  A textualist has to consider the whole text.  Even if one could come to a clear understanding of the phrase "the right of the people to keep and bear Arms, shall not be infringed", it still leaves open the question of what preamble means and what the function of that preamble is in the sentence.  A textualist MUST answer that question but the text itself doesn't supply an answer. 

If your point is that that a textualist *could* reach the result that the Heller and NY Gun Club majorities reached, I would agree in the limited sense that because textualism can't and doesn't answer the questions presented in those cases, a textualist who admits the limits of textualism could do that, by bringing in some interpretive tool or method outside the text to get there.

[The Minsky Moment]

At the time it didn't matter because before the civil war the bill of rights wouldn't have constrained the states, and they would have been the ones responsible for gun control. If the federal government was interested in arms limits it probably was for some nefarious / military oriented purpose, hence the amendment. The authors weren't thinking of the amendment one day applying to states, or the federal government one day concerned about school shootings.

This strikes at the heart of the matter.  At the time the Constitution was drafted the provisions of the bill of rights did not apply against the states and it was not anticipated by anyone that they ever would. The Second Amendment becomes part of a constitutional balancing act over one of the most fraught political issues of the day - the role and autonomy of the state militias in national defense.  It was all about federal vs state power.

The 14th Amendment led to the incorporation of much of the bill of rights vs the states.  But incorporating the second amendment against the states was IMO a critical mistake because it converted a constitutional provision for the protection of state power against federal interference into a provision allowing federal courts to trim state power.

[alfred russel]

To start with, I think your formula assumes that a regulation of concealed carry is an "infringement of the rights of the people to keep and bear arms".  New York (and others) would dispute that.

they can dispute it but the inability of being able to walk around packing heat seems like a fairly big infringement to the ability to bear arms.

[The Minsky Moment]

To start with, I think your formula assumes that a regulation of concealed carry is an "infringement of the rights of the people to keep and bear arms".  New York (and others) would dispute that.

they can dispute it but the inability of being able to walk around packing heat seems like a fairly big infringement to the ability to bear arms.

And yet that is a disability that has never impaired the efficiency of any organized military force with firearms.

[Admiral Yi]

Is there any contemporaneous commentary on the well regulated militia preamble?

I've always had a problem with the interpretation "only for the purpose of use by a well regulated militia" because there are many ways to make that clear if it is in your intention, the drafters understood written English, and as a question of basic syntax the actual text doesn't support it.

Now if the point being made is if that wasn't their intention why the hell did they stick it in there, I agree it's puzzling.

[grumbler]

Is there any contemporaneous commentary on the well regulated militia preamble?

I've always had a problem with the interpretation "only for the purpose of use by a well regulated militia" because there are many ways to make that clear if it is in your intention, the drafters understood written English, and as a question of basic syntax the actual text doesn't support it.

Now if the point being made is if that wasn't their intention why the hell did they stick it in there, I agree it's puzzling.

Yes, the Federalist Papers 29.  The money quote, for me, is the following:

It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.''
(snip)

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''

Federalist 29

It is clear what the purpose and scope of the well-regulated militia is, and that "the people" refers to the people collectively, as opposed to the federal government.

"Publius" was used at various times as a pseudonym for Hamilton, Madison, and Jay.

[Berkut]

Is there any contemporaneous commentary on the well regulated militia preamble?

I've always had a problem with the interpretation "only for the purpose of use by a well regulated militia" because there are many ways to make that clear if it is in your intention, the drafters understood written English, and as a question of basic syntax the actual text doesn't support it.

Now if the point being made is if that wasn't their intention why the hell did they stick it in there, I agree it's puzzling.

To go from "that is puzzling" to "you cannot restrict an individuals right to carry a handgun concealed, or to tote around an assault rifle" takes quite a leap.

You can take that leap, and of course many people who love guns do in fact take that leap. I don't think anyone who doesn't start from the conclusion that guns are swell and everyone should be allowed to have them can, or will, take that leap just by reading the text itself. Indeed, that is in fact the leap - that if you start with the conclusion that there is an individual right to arm yourself to the teeth, then you can puzzle out whatever you want from the text.

But that isn't textualism. Nor is it originalism. And for a USSC justice, it is pure partisan hackery.