In today's gun rights cases, historians are in hot demand. Here's why - Article NPR

[Mesa Defense]

An interesting read



https://www.npr.org/2024/02/03/12275...d%20gun%20laws.


A small clip from the article on NPR.ORG below...

"Historians have found themselves caught in the middle of America's debate over gun control ever since the Supreme Court ruled in 2022 that firearms laws must be consistent with American "tradition."

That decision in New York State Rifle & Pistol Association v. Bruen set off a new wave of challenges to state and federal restrictions on guns.

"What's happening now is a fight over what the Second Amendment ultimately means," says Chuck Michel, president and general counsel at the California Rifle & Pistol Association, which is suing the state over newly passed limits on concealed firearms. "This truly is a historic time for Second Amendment jurisprudence."

[Rickybillegas]

Mark W Smith calls a lot of this 'Airy Fairy History' because much of it is irrelevant to actual laws codified during the formative period. Some of it is speculation as to 'what the founders meant or would have allowed', and others are strained efforts to show analogy to existing laws during the formative period.

The various papers and research these people do is not necessarily inaccurate or poorly done in so far as actual history goes. The problem is in the analysis. The attempt to 'fit a square peg in a round hole' resulting in false analogues in a desperate attempt to create an illusion of conforming to the BRUEN history test.

OTOH obviously some Judges are using these false analogies as a smokescreen to cater to their anti-gun agenda.

[SpudmanWP]

That article does not do a good job of clarifying Bruen.
It is much more than a "tradition" that must be met, but the "historical tradition of firearms regulation."

justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation.

To put it simply, if a municipality had an unwritten rule (ie tradition alone) on certain arms, but no written law, it does not count.

Also, the number and type of regulation have a weighted effect on the H&T test.

If it's a territorial law, does not count.

In addition, the vast majority of the statutes that respondents invoke come from the Western Territories. The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.

SCOTUS even went into the numbers when it said:

Respondents next direct the Court to the history of the Colonies and early Republic, but they identify only three restrictions on public carry from that time. While the Court doubts that just three colonial regulations could suffice to show a tradition of public-carry regulation, even looking at these laws on their own terms, the Court is not convinced that they regulated public carry akin to the New York law at issue

[AlmostHeaven]

Screw academics. The highly indoctrinated self-appointed scholars who have spent their entire lives cocooned in stuffy university offices and siloed lecture halls qualify as some of the most out-of-touch people in existence.

The experts who wholesale fabricate gender ideology from nothing and espouse racist diversity equity inclusion policies should have exactly zero credibility when determining the scope of fundamental constitutional rights.

[sfzombiegunner]

"To Keep and Bear Arms: The Origins of an Anglo-American Right" by Joyce Lee Malcolm is a concise primer on the subject. Her work was used in Heller.

[TrappedinCalifornia]

If I remember correctly, this discussion arose when Bruen was released. The problem is an age-old one for academics, non-academics, litigators, etc. It goes back to Edward Hallett Carr's What Is History? and, in a nutshell, that opens a whole can (or two or three) of worms. The reason?

History is, first and foremost, 'a story well told;' i.e., it is a narrative. One of the definitions for narrative is: "a story or account of events, experiences, or the like, whether true or fictitious." In short, it speaks to 'our truth' vs. 'the truth' vs. what is truth? vs. whether the truth is knowable. Such is precisely what is being played upon.

'Screw the academics' is an example. It points to how some academics use History to further their cause; i.e., their narrative. Another example is referenced above...

Mark W Smith calls a lot of this 'Airy Fairy History' because much of it is irrelevant to actual laws codified during the formative period. Some of it is speculation as to 'what the founders meant or would have allowed', and others are strained efforts to show analogy to existing laws during the formative period.

The various papers and research these people do is not necessarily inaccurate or poorly done in so far as actual history goes. The problem is in the analysis. The attempt to 'fit a square peg in a round hole' resulting in false analogues in a desperate attempt to create an illusion of conforming to the BRUEN history test.

OTOH obviously some Judges are using these false analogies as a smokescreen to cater to their anti-gun agenda.

Yet another example, one consistent with Carr's argument, is reliance on this or that reference or this or that analysis. As has been stated by both sides, it is difficult to state something with certainty when the certainty in question was amorphously derived. Remember, the 2nd Amendment, while clear to us, was not as definitive, in some respects, as we attempt to present it. Neither is it as 'unclear' as other forces attempt to make it appear. Thus, it is a matter of what is emphasized and what that emphasis is reliant upon. I think such is what Chuck Michel was getting at with the quote presented in the OP...

..."What's happening now is a fight over what the Second Amendment ultimately means," says Chuck Michel, president and general counsel at the California Rifle & Pistol Association, which is suing the state over newly passed limits on concealed firearms. "This truly is a historic time for Second Amendment jurisprudence."

Truth be told, that is the nature of ALL of the Constitutional rights protected in the Bill of Rights. It's what I continuously reference as a 'balance point.' It's why I continually point to Barnette (1943)...

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

I think this is what Thomas was after in Bruen...

...Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to "make difficult empirical judgments" about "the costs and benefits of firearms restrictions," especially given their "lack [of] expertise" in the field...

Put another way, THT is a starting point which should inform a decision. It wasn't intended as a be all, end all, full stop. It can't be. History, as it is known and practiced, is both incomplete and relayed from a perspective. That perspective is created through myriad variables and there is no way to account for, acknowledge, or even rely on all the variables. This is why, in Bruen, it is said...

...at least two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified...

At least two, meaning there could be more metrics which come into play. Thus, it cannot be as 'absolute' as many would like to make it and, practically speaking, cannot and is not supposed to be as nebulous as others want it to be. I firmly believe that this is what the Founders actually intended. It's not that the Constitution cannot be adapted for different times and it's not that the Constitution is adaptable to differing agenda. It's that the Constitution was intended as a 'handrail;' part substantive, part illusory.

Both the substantive and the illusory were to be narrowly construed. The Bill of Rights was not intended as a set of rights to do as you please and it was not intended as a 'suicide pact.' It was intended as a metric to be utilized in determining permissible liberties in a society at a given moment in time. Take Reagan's much criticized signing of the Mulford Act.

It was an attempt by the politicians, one supported by many on both sides of the gun debate, to deal with a perceived threat, in the moment. How it has been utilized is different than the intended purpose, however. For some, it was racism. For some, it was "Reagan betrayed us." For some, it was protection from militants. For some, it was... In the end, it has become a caricaturized exemplar for various agenda.

If you go back and actually read it, the Mulford Act didn't ban public carry. It banned public carry without a license to carry. That is the 'troubling' part in that it turned what many envision as an 'absolute right' into a 'government privilege.' Why? Because, as Mulford himself described it...

...This legislation was specifically designed with the help of the National Rifle Association to protect our constitutional right to bear arms and yet to assist the law enforcement people who asked for this bill do to something about the armed bands of citizens who are walking our public streets and in public places with loaded weapons...

Many wanted the State Government to be able to 'do something' and many point to it as an attack on our liberties. Both are 'true.' But, neither 'side' allows for the original intention of the other, where one side wants Government to be able to do something about a perceived 'threat' and the other doesn't want Government to be able to do anything, while the Government had hemmed in an individual's ability to do 'anything' with regard to that individual's perception of threat. In a sense, it was an attempt to split the baby and such rarely works out in the best interest of the baby.

What you hear today are the various narratives. What gets lost is the original intent and why it was a concern. What was ignored then and what is often glossed over now is that by allowing it to be turned into needing 'government permission,' it set a precedent which has been taken to a different extreme than the actions which the 'unfettered' liberty was allowing for. In short, it was a relatively well-intentioned (by some) effort to allow for doing 'something' which, in actuality, was an 'extreme' reaction to an 'extreme,' which beget greater 'extremes.'

This is the kind of thing which happens when the 'balance point' is lost sight of in the angst of the moment. Both sides can whip out justifications and rationalizations for their actions; but, neither side ever seems to recall that the original intent was a perpetual balancing act between an absolute right and limitations on the liberties associated with the right. Ultimately, you do have the 'right to.' However, you don't always have the 'liberty to.' What the other side fails to acknowledge in regard to things they disagree with is that not allowing any 'liberty to' effectively negates the 'right to.'

It's very much the same arguments which surround abortion, drugs, etc. EXCEPT that the right to keep and bear arms is specifically enumerated. In other words, it has been declared. Whereas things like abortion, drugs, etc. are TBD under the Ninth Amendment.

Then again, if we're still debating whether "Thou shalt not kill" was actually meant as "Thou shalt not murder" and what the difference entails, I suspect we'll be debating THT for quite some time as well. Meaning it is likely there will never be a 'concrete' resolution or, at least, a 'solid' one; i.e., narratives.

[homelessdude]

Trapped in Ca. I would like to commend you on your articulate and well reasoned contributions to these forums. It is always interesting and thought provoking. The moral verses societal functionality discussion was an excellent read as is the above. thanks

[BigStiCK]

Huh. Kinda like climate change or big pharma. Pay the right 'Experts' enough money to fabricate whatever it is you want to say. Pure Marxism.

[AlmostHeaven]

Most left-wing academics truly despise individual liberty, classical American lifestyles, and the traditional founding era values upon which the United States Constitution rests.

These people require no corrupt bribes or monetary compensation to testify in support of turning this great nation into yet another socialist regime where government bureaucrats command people how to live.

[Rickybillegas]

The SB2 lawsuit (May v Bonta and Carralero v Bonta) has been subjected to these historical and academic briefs by the usual suspects; Bonta et all, 'Everytown' and 'March for our lives' in anticipation of the upcoming hearings
in April.

Mark Smith did a video on the Everytown brief which I watched. Personally I think he's off on this one. I think he gives far more credibility to the worthiness of this brief than is warranted. Mr. Smith is undoubtably a great recourse, but the Everytown brief is just a wordy rehashing of the same old supposed analogues, mostly from the post 14th amendment.
It almost seemed to me like he needed to get another video out and this was the result.

Not saying that dishonest Judges won't see things they love in this brief, just that it's the 'same 'ol same 'ol'. We'll find out after April I guess.

[ShaneB]

This isnt hard to figure out, its right in the 2A "shall not be infringed" is pretty clear. Whats sad is people actually think the gun rights groups want us to truly get our rights back. They would be out of jobs if that actually happened.

[DolphinFan]

Rob Bonta already screwed the pooch on this with his historical timeline of laws between 1790-1869, and the ONLY legal law was the storage of black powder.

[AlmostHeaven]

The SB2 lawsuit (May v Bonta and Carralero v Bonta) has been subjected to these historical and academic briefs by the usual suspects; Bonta et all, 'Everytown' and 'March for our lives' in anticipation of the upcoming hearings in April.

Mark Smith did a video on the Everytown brief which I watched. Personally I think he's off on this one. I think he gives far more credibility to the worthiness of this brief than is warranted. Mr. Smith is undoubtably a great recourse, but the Everytown brief is just a wordy rehashing of the same old supposed analogues, mostly from the post 14th amendment. It almost seemed to me like he needed to get another video out and this was the result.

Not saying that dishonest Judges won't see things they love in this brief, just that it's the 'same 'ol same 'ol'. We'll find out after April I guess.

Second Amendment plaintiffs drew a solid 3-judge merits panel in May v. Bonta. I expect smooth sailing and strong protection of the fundamental right to bear arms, until the Ninth Circuit inevitably takes the case en banc and trashes Supreme Court precedent yet again. Therefore, I hope the panel takes at least two years to issue its decision.

[Rickybillegas]

Second Amendment plaintiffs drew a solid 3-judge merits panel in May v. Bonta. I expect smooth sailing and strong protection of the fundamental right to bear arms, until the Ninth Circuit inevitably takes the case en banc and trashes Supreme Court precedent yet again. Therefore, I hope the panel takes at least two years to issue its decision.

And hopefully before then one of these sensitive place lawsuits (NY, MD, NJ)
will reach SCOTUS and get this done for good.
NY and NJ have already been ruled on by appellate court panels.

[WithinReason]

Historians are in hot demand? All I ever hear is, "OK, Boomer..."