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by mijamo
1744 days ago
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Actually what you are describing is closer to original intent which is NOT what most originalists justice use, as they are more oriented towards original meaning. And both case suffer from the same thing described above: is there even a single original meaning/intent? Can we unambiguously understand it today? Can it be applied to today's context? If we take your code example, what if you inherit a codebase that used some specific networks calls that do not exist anymore and that predate https. Would you reimplement it in exact the same way and skip the whole authentication, at risk of having something extremely limited? Would you have it accept https connections? But how would you know if the original authors would be ok with a security layer that depends on central certificates? Sure you could say "the dependency is immutable, it will do no less or more than what was possible in the original context it was created, anything else needs a need dependency" and then suddenly you end up with a second amendment that only concerns 18th century weapons. |
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An Originalist looks at the Second Amendment, and sees a hard line in the sand. The right to bear arms will not be infringed is the active predicate, the necessity of a militia to the security of the State being a justification for the prohibition of the infringement of rights by the Federal Government. That's where the conversation starts.
Now, you've got a word with a hell of a lot of wiggle room there, depending on how you look at it. Infringe. Is it infringement if you just have to fill out a sheet of paper, and pay a tax, but still get the weapon? Enter the NFA.
Around the time of the NFA, gangs were experiencing a heyday, robbing the mail, the bank, ventilating each other... Something must be done, says the activist. The Originalist says, what do you propose? To restrict the technology meets the definition of infringement. The Activist says, let's tax it, and create paper trail, and make it a serious offense to not go through proper channels. In the end, everyone gets what they want. The Originalist is happy, the Second Amendment is upheld in spirit (I can still get a machine gun, I just pay a fee and it gets a number), even if with a bit of paperwork, the Activist got their enforcement mechanism to disincentivize uncontrolled machine gun propagation, or propagation of "only gangsters use that" weapons. Cool.
What you describe is Heller, if I recall correctly, and that bloody Amendment in 1986 that actually does extend to infringement in my estimation, because it straight up criminalizes and locks away part of the right to bear arms behind not only a poll tax, but the relinquishing of the right to privacy by FFL's based on enforcement methods by Law Enforcement, and the closing of the machine gun registry by revocation of Congressional authorization to the Executive to spend money maintaining it, meaning people can no longer legally bear arms that even by Heller's tortured definition, would be used by a militia.
The problem is that the Activist feels justified doing that because the Originalist already agreed that some paperwork getting added to the process was okay. The Originalist is about to lose it, because this Activist is not navigating the transitive dependency to realize that in extending precedent via tortured case law (Heller), implementing a poll tax (NFA +1986 amendment closing the registry) which the activist bends over backwards to accommodate under the Federal Government's auspice of "regulating interstate commerce (of firearms)", that due to other case law precedent where Federal regulatory jurisdiction was crowbarred into intrastate grain sales due to "intrastate sales effecting the interstate Market", taken as a whole, infringes the spirit of the 2nd Amendment, and the NFA, and needs serious attention from the Legislature to untangle the entire mess, which unfortunately, no one has the stomach for.
So the courts keep doing local Band-Aids and hacks consistent with the legal "principle of least harm (minimize the side-effects of new precedent), which only makes the situation worse, and creates new tangles and uncertainty.
Throw in the fickle nature of Administrative law changes by the Executive, and most reasonable people who the law was never originally intended to keep weapons out of the hands of will never bother to open the can of worms because of the regulatory morass it's become.
And that is why the Originalist is your friend, and the activist is frowned upon, and tolerated as a necessary release valve for societal change in the face of a defective or otherwise occupied legislature. Justices going nuts with interpreting things without doing their homework results in legal realities completely contradicting the intent of the original legislatures in making particular laws because a future generations felt like taking a modest control, and cranking it to 11, without refactoring the entire framework.
This is why I hate our legal system. No, I can't think of a better one. This one undeniably sucks though.
See: https://en.m.wikipedia.org/wiki/Gun_law_in_the_United_States
It's a depressing slog, but once you get through it, you'll come out of it with the resounding feeling that "this is why we can't seem to hold on to nice things".