Originalism and the Second Amendment


A federal judge in Mississippi has asked that an historian be brought in to assist him in deciding original intent wrt the writers of our Constitution and Bill of Rights.

Sounds like a good idea, as he contends, judges are not historians and trained to understand the intent of white, property owning men in the 18th Century. HIs words, not mine)

25 thoughts on “Originalism and the Second Amendment

    1. Heads up . . .
      If Roe is not “settled law” once and for all, neither are Heller and Bruen. The Constitution is not a suicide pact and sooner or later, jurisprudence will catch up with that fact and throw out the mind numbing argle bargle that Scalia cooked up to dismiss the obvious original intent of the Second Amendment – protecting a state’s ability to organize a “well-regulated militia”

      Liked by 1 person

      1. Certainly if at some future time you can get enough revisionist justices on the court to declare the sky is orange, the 2ndnAmendment might be interpreted the way you want. But so long as we have a court grounded in reality and literacy, I won’t worry.


          1. “You are the court?”


            But in case you really missed the point, you define being “grounded in reality and literacy” to mean agreeing with you. And what is particularly laughable about such hubris is that you frequently report to us from an a priori fantasy world in your head.

            Liked by 1 person

          1. Doesn’t matter one way or the other if I have read it. The judge in the article surely has. Scalia was NEVER an historian. The Mississippi judge is requesting permission to bring in an historian for context from the HISTORICAL perspective, not the judicial one. It is wise to do so, IMO.

            But it seems you feel THREATENED by the idea of an historian studying the context of the intent of the founders.

            Further proof that the Right fears facts and will do everything in their power to prevent them from being brought forth.

            Liked by 1 person

          2. “Why is it that everything that goes over your head is either sophistry or ‘a priori?’”

            You flatter yourself if you think your bull goes over my head. It does not. Unlike you, I guess, my college education focused on Philosophy. That was my major and I graduated as a member of Phi Beta Kappa. I was trained to recognize invalid arguments and closed a priori systems.

            For example, almost ALL of your economic opinions can be traced back to a postulate – “Markets always produce the best outcome” and no amount of contrary evidence has ever been able to shake your faith in that a priori principle.

            Liked by 1 person

          3. RE: “I was trained to recognize invalid arguments and closed a priori systems.”

            It is a shame you wasted your time on that major. An effective philosopher would notice the many fallacies in your comment.


    2. He is looking to view Heller and Bruen through the PROPER historical lens by using an actual historian to assist in determining the ACTUAL meaning of the founders. It is something that YOU use all of the time, thinking YOU know exactly what the intent was. You are not an historian and I think the judge is wise to consider that judges are NOT historians and to fully understand the intent, someone who is scholarship is in history could be beneficial

      Liked by 2 people

  1. History is not science. Historical analysis does not produce “facts” the way science does.

    While I am in favor of trying to understand the original intent of the framers who wrote the Constitution, I accept that original intent is irretrievably lost with the passage of time and that no historical reconstruction can produce it with certainty. I expect a sitting judge to have satisfied his curiosity on such questions during his academic training.


    1. …”no historical reconstruction can produce it with certainty. ”

      Then can it not be said that judges cannot produce it with certainty either?

      Historical analysis provides what is needed here, and that which so many on the right say conservative justices do: Provide ACTUAL INTENT.

      If the 2A zealots are so keen for ACTUAL INTENT, why do they believe that only judges can provide it?

      Liked by 1 person

      1. RE: “Then can it not be said that judges cannot produce it with certainty either?”

        Correct, and exactly the point. Judgements in law generally require provable assertions, and since original intent is not provable its relation to constitutional argument is merely informative. A judge still needs to make valid decisions, but they cannot be based on shallow formulas such as, “Original intent is X, therefore my decision is Y.”


          1. You assume too much. I have asserted that epistemology is an insufficient basis for legal argument, not that is an unnecessary one.


        1. “Original intent is X, therefore my decision is Y.”

          That is what justices have been doing for decades. Yet you seem to believe it is proper … UNLESS you disagree with the decision.

          I see nothing wrong with bringing in an historian to CONSULT with the judge making the decision. Amicus briefs are filed all of the time on both sides of cases. A judge would, in my mind, being doing due diligence in getting an HISTORICAL perspective on any decision being prepared.


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