Originalism is conservative policymaking masquerading as legal analysis. Even if it weren’t, it would still be a hilariously dumb way to run a country.
I've seen many pejorative descriptions of originalism, but never one as succinct and accurate as "hilariously dumb." It's definitely time for those of us wishing to understand the current SCOTUS majority to shed the totally undeserved reverence for the Court that has hidden its true nature ever since the era of John Marshall.
I am an originalist. The “history and tradition,” eligible for consideration starts on June 21, 1788.
The Constitution, Article VI, Clause 2 establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the “supreme Law of the Land”, and take priority over conflicting state laws.
The Constitution is a specification. For example, the militia and the second amendment..
Article 1, Section 8
Clause 15,. The Congress shall have Power * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Clause 16, The Congress shall have Power * * * 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.
Section 10, Clause 3, No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, No consent = no state troops = no state militia.
Article II, Section 2,
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
2nd Amendment:
Only Congress can provide for calling out and organizing the militia. The Militia and “The right of the people to keep and bear arms . . .” are unrelated. They do not depend on each other.
December 15, 1791 .Second Amendment, "A well regulated Militia, being necessary to the security of a free State " does not provide consent, power, or authority for states to keep troops or form militias.
"the right of the people to keep and bear Arms, shall not be infringed." does not grant a Right; it prohibits the government from infringing on the right of the people to keep and bear arms.
Many people conflate the 2nd Amendment (1791) with the Militia Acts of 1792:
Militia Acts
“history and tradition” may provide guidance and earlier Militias may provide a template. However, the Militia was/is what Congress legislates.
Congress passed Militia Acts, (See Article I, Section 8, Clauses 15 and 16 above)
May 2, 1792 act provided to the President, the authority to call out the militia.
May 8, 1792 act provided for organizing the militia, now called the National Guard,
- provided consent for states to keep troops.
- required conscripts to provide their own weapons and accouterments (no 2nd Amendment needed)
One footnote to an excellent article: as has been noted many, many times, the FOUNDING FATHERS THEMSELVES were not "originalists." They were, in fact, the original Constitutional ANTI-originalists. Sorry for the reiteration, but I just had to get that off my chest...
I've seen many pejorative descriptions of originalism, but never one as succinct and accurate as "hilariously dumb." It's definitely time for those of us wishing to understand the current SCOTUS majority to shed the totally undeserved reverence for the Court that has hidden its true nature ever since the era of John Marshall.
I am an originalist. The “history and tradition,” eligible for consideration starts on June 21, 1788.
The Constitution, Article VI, Clause 2 establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the “supreme Law of the Land”, and take priority over conflicting state laws.
The Constitution is a specification. For example, the militia and the second amendment..
Article 1, Section 8
Clause 15,. The Congress shall have Power * * * To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Clause 16, The Congress shall have Power * * * 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.
Section 10, Clause 3, No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, No consent = no state troops = no state militia.
Article II, Section 2,
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
2nd Amendment:
Only Congress can provide for calling out and organizing the militia. The Militia and “The right of the people to keep and bear arms . . .” are unrelated. They do not depend on each other.
December 15, 1791 .Second Amendment, "A well regulated Militia, being necessary to the security of a free State " does not provide consent, power, or authority for states to keep troops or form militias.
"the right of the people to keep and bear Arms, shall not be infringed." does not grant a Right; it prohibits the government from infringing on the right of the people to keep and bear arms.
Many people conflate the 2nd Amendment (1791) with the Militia Acts of 1792:
Militia Acts
“history and tradition” may provide guidance and earlier Militias may provide a template. However, the Militia was/is what Congress legislates.
Congress passed Militia Acts, (See Article I, Section 8, Clauses 15 and 16 above)
May 2, 1792 act provided to the President, the authority to call out the militia.
May 8, 1792 act provided for organizing the militia, now called the National Guard,
- provided consent for states to keep troops.
- required conscripts to provide their own weapons and accouterments (no 2nd Amendment needed)
One footnote to an excellent article: as has been noted many, many times, the FOUNDING FATHERS THEMSELVES were not "originalists." They were, in fact, the original Constitutional ANTI-originalists. Sorry for the reiteration, but I just had to get that off my chest...