You’ve got two Constitutional originalists/textualists who wanted to proceed with these cases - Justices Gorsuch and Thomas. The assumption of pro-gun-rights folks is that, because these two Justices are hard-right-leaning, then “obviously” they would uphold District of Columbia v. Heller’s distinction that the 2nd Amendment need not apply strictly or exclusively to militia (which contradicted U.S. v. Miller and some 70 years of stare decisis), and perhaps expand upon it. Which is actually a really, really funny assumption, because that is what the U.S. Constitution says the “right to keep and bear arms” is for: a well-regulated militia. That was indisputable - both in a historical context and in any reasonable originalist or textualist reading of the 2nd Amendment…until Heller in 2008. And yet…well, there’s the rub…because really Gorsuch and Thomas are what we would call “fair-weather” originalists/textualists, in that they mainly apply that standard when it suits their conservative ideological bias, just as happened in Heller. In the current instance, however, authentic textualism/originalism clearly would NOT serve gun advocates.
In any case…aside from this rather humorous irony, I suspect the main reason SCOTUS sidestepped this issue is because it would be inherently “activist” to issue a ruling on these laws that potentially could spawn a reinterpretation of every gun restriction on the books around the U.S. - and years of litigation along with that. Again, though…judicial activism is SUPPOSED to be something that conservatives dislike. And yet…not in this instance. :-0
So basically, it was a reasonable and sound decision to avoid a de facto rewriting of established law, while also avoiding exposure of an underlying hypocrisy among right-leaning judiciary and citizens in the U.S. It’s really a win-win for everyone involved.
But of course hypocrites understandably tend not to see it that way.
My 2 cents.
Comment from Andrew Mateskon: "Take a look at the hilarity of the most famous textualist, Scalia, in Green v. Bock Laundry. Suddenly, the written word as known by the authors doesn't matter, but the context and surrounding law does."
Well at least he’s being partly intellectually honest in admitting that strict textualism “produces an absurd, and perhaps unconstitutional, result.” LOL. But to then invent his own arbitrary “benign fiction” for what the word “defendant” really meant in 609(a) is of course equally absurd. It seems textualism is a bit like the literalism of religious fundamentalists: “Since this is what we want the text to mean, this is what it literally means. Then we need not have any doubts.”
Comment from Matthew Moore: "Actually read DC vs Heller. You will be enlightened. The individual (non-militia) view is based on the 14th Amendment and the speeches and writings of it’s authors and ratifiers."
Oh I’m pretty familiar with it. The point is that Scalia’s majority decision is not remotely justifiable purely on a textualist basis. Instead, it’s a fishing expedition for a particular ideological reading outside of the actual text itself. It’s the epitome of hypocrisy in that regard. I’m not saying the favorable arguments don’t have merit…that is a different discussion… I am saying that they just don’t have textualist merit, not by any stretch of the imagination. That is what I mean by “fair-weather” textualism/originalism.
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