Calling Bullsh%$ on Originalism

Federal Judge Carlton Reeves of the Southern District of Mississippi has called out originality in a gun rights case.

Specifically, he makes a relatively obvious observation that judges are not historians.

From there, he takes what would be next logical step, that if you need to determine the original intent of the founders, you need to bring in a historian as an expert witness, much in the way that you would bring in a forensic pathologist, or a chemist, or a ballistics expert.

This is really not a surprise.  Judges are there to decide the law, and not to decide the facts.

So he has proposed to counsel that he bring in an historian to to evaluate founding era firearm restrictions in order to decide on a challenge to a ban on felons possessing firearms:

Federal judges are not historians, but they are increasingly obligated to play them on the bench. In his Bruen decision last June, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified. Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun while under indictment for a violent crime, to carry a gun into airports, and to scratch out the serial number on a firearm, rendering it untraceable.

In each case, both sides presented a few scraps of historical evidence to support their positions. Judges based their decisions on those scraps without further research, following Thomas’ suggestion that they rely on “the historical record compiled by the parties.” Last Thursday, Judge Carlton Reeves of the Southern District of Mississippi charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. At worst, it will demonstrate the absurdity and impossibility of Thomas’ command. At best, it will restore sanity to an area of jurisprudence that is going completely off the rails.

Reeves’ order is bracingly honest about the sorry state of Second Amendment jurisprudence today. “The justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote. Federal judges “lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.” Putting oneself in the mindset of rich, white men in the 18th century requiring training and practice. “Yet we are now expected to play historian in the name of constitutional adjudication.”

A short synopsis of what (Biden Appointee) Judge Reeves is writing is, "The Originalist Judges are historical ignoramuses, cherry picking historical anecdotes to serve their own biases, and we need to consult real historians."

Of course, Originalism has always been so.  It was first promulgated in its current extreme form by the Nixon and Administrations as a way to keep hippies and black people down for the former, and to remove meaningful regulation of corrupt business practices for the latter.

Given that Judges routinely bring in dismal scientists (economists) in court cases as experts, it makes sense to bring in historians, unless, of course, you are a corrupt hypocrite.