New York Times Can’t Let Got of Hatred for ‘History and Tradition’

The Bruen decision rocked the nation, and it did so in a way that the nation needed to be rocked. Gun control had been permitted in far too many circumstances where there was no justification for it. Despite the text of decisions like Heller and McDonald, anti-gun lawmakers continued to push gun control and anti-gun judges continued to uphold those via means balancing.

They basically argued that it was in the government’s interest to infringe on our rights, so screw our rights.

Bruen put an end to that once and for all. It laid out the actual test that courts needed to follow to determine if a law ran afoul of the Second Amendment or not. 

And, frankly, the New York Times can’t seem to get over it.

In November 2022, a group of L.G.B.T.Q. students at West Texas A&M University started planning a drag show for the following spring. They wanted to raise money for suicide prevention and stand up for queer self-expression at a time when conservatives in Texas, in the name of protecting children, were mobilizing to shut drag shows down.

But the lawsuit landed on the docket of Judge Matthew J. Kacsmaryk, a Trump appointee to the federal bench in Amarillo who is the author of several sweeping arch-conservative rulings. And in the drag-show case, Judge Kacsmaryk had a new tool, supplied by the Supreme Court. Known as the “history and tradition” test, the legal standard has been recently adopted by the court’s conservative majority to allow judges to set aside modern developments in the law to restore the precedents of the distant past.
The conservative justices applied the history-and-tradition test in three major rulings decided in the space of a week in June 2022. First, they struck down a New York restriction on gun ownership for being out of line with the nation’s “historical tradition” around regulating guns. Next, in Dobbs v. Jackson Women’s Health Organization, a conservative majority ended the constitutional right to abortion in Roe v. Wade because it was not “deeply rooted in the Nation’s history and tradition.” Finally, the court held that a public high school’s decision to let go of a football coach for praying with a crowd he gathered at midfield was out of line with “historical practices and understandings” of religious freedom.

Maybe it’s just me, but defending a drag show, abortion, and the firing of a coach who held an optional prayer gathering isn’t exactly the way to covnince fans of Bruen that they’re wrong.

Now, I don’t actually agree with the drag show decision based on what I know of the case–it was for college students, all legally adults, and was supposed to be PG rated regardless–so I’m not entirely sure the judge was right to rule as he did, even within the history and tradition standard.

But the truth was that even Justice Ruth-Bader Ginsberg had problems with the way Roe v. Wade was decided. Plus, Dobbs simply determined that the abortion issue was outside of the scope of the Constitution, leaving it to the states to determine.

And I’m sorry, but prayer and football have gone together for ages.

The flurry of history-and-tradition opinions prompted an uproar among liberal court-watchers. What counted as historical or traditional? The open-ended nature of the terms seemed to invite a freewheeling survey of the 18th and 19th centuries. It’s “basically a fancy way of saying, ‘if men in power didn’t recognize this right as fundamental in ye olde times, we won’t recognize it now,’” tweeted Joseph Fishkin, a law professor at the University of California, Los Angeles. The court was playing “memory games,” in the words of a widely cited law review article about Dobbs by Reva Siegel, a Yale law professor. Why does the conservative majority “appeal to history and tradition in exactly those cases in which it is changing the law?” she asked in another, forthcoming piece.
Some judges expressed practical concerns as well. In one of many recent suits that involved challenges to state and federal gun restrictions, Judge Carlton Reeves, an Obama nominee to the federal bench in Mississippi, pointed out that judges were not trained to sort through the competing interpretations of history. “We are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” Reeves wrote.
Conservatives, meanwhile, had their own furious debate. For them, a central question was whether the Supreme Court’s conservative majority was deviating from originalism, the method of interpreting the Constitution championed since the 1980s by heroes of the right like former Justice Antonin Scalia. Originalism resembles the history-and-tradition test in focusing on the past. But its main selling point was to fix the meaning of the Constitution to the moment in which it was written, to prevent judges from substituting their values for the wisdom of the nation’s founders.

Yes, that’s what Originalism is–though the author drastically overstates the “furious debate” to a significant degree.

See, the issue for the New York Times is that the history and tradition test means they can’t push progressive values, including more and more restrictions on gun control. 

States like California and New York restricted guns to an insane degree. A number of states made it virtually impossible for law-abiding citizens to carry firearms for self-defense in a lawful manner, making it so they had to decide whether to obey the law or their heart when it came to defending their families in public.

That was never on the agenda for our Founding Fathers. Especially considering we have writings from those same Founding Fathers making the argument against gun control. We know precisely what they would have wanted.

See, this idea of a living Constitution is one that argues the words of the Constitution are maleable, that they can mean whatever the courts need them to mean in a given moment. The phrase “shall not be infringed” is meaningless in such a context because legal scholars just don’t want anyone to think of them. 

The “right to keep and bear arms” simply means a single-shot shotgun but no more because “our Founding Fathers couldn’t have imagined the firepower available to us today” all despite history proving that they had every reason to believe gun technology was advancing.

The “people’s right” means the people except when they want it to mean the state.

They want the Constitution to be a piece of clay rather than a rock on which we built a nation. That’s especially valuable when we’re talking about gun control.

Yet we’ve also seen in so many other nations where they got their extensive gun control, then they turned their attention onto things like free speech. They have no concern about people fighting back because they’ve disarmed them so as to prevent that, but here they’ll also have this argument that the Constitution’s text doesn’t mean what it says it means.

I’d be annoyed if this was really just about job security for lawyers, but it’s not. It’s an attempt that will lead to all of our rights being stripped away under the guise of a living Constitution and the New York Times folks figure no one would try to strip away their freedom of the press.

That’s an awfully myopic view.

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