Should Courts Appoint Historians as Experts in Second Amendment Cases?
BY Herschel Smith
1 year, 10 months ago
Stephen Halbrook at Reason.
“Not wanting to itself cherry pick the history,” Judge Reeves concludes, “the Court now asks the parties whether it should appoint a historian to serve as a consulting expert in this matter. … This Court is acquainted with the historical record only as it is filtered through decisions of the Supreme Court and the Courts of Appeals.” Those decisions would be a good start, except that he seems to think that the Supreme Court got it wrong.
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Judge Roger Benitez expressed skepticism about “experts” in a hearing on December 12 in Duncan v. Bonta, the California magazine ban case that Bruen remanded for reconsideration. The historical documents that matter are enacted laws, ordinances, regulations, and the like. He ordered the State to prepare an Excel spreadsheet of the laws they consider to be historical analogues to present-day magazine bans, including dates of enactment and repeal and any judicial decisions on their constitutionality. The plaintiffs could then file a rebuttal.
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Perhaps we need a reminder from Chief Justice John Marshall in Marbury v. Madison (1803): “It is emphatically the province and duty of the Judicial Department to say what the law is.” Judges may not defer to “experts” to advise what the law is. “Do your job,” as New England Patriots head coach Bill Belichick famously said.
Yea, I read that dummy’s statements when he made them. He sounded like a second grader trying to write coherent sentences. By contrast, Judge Roger Benitez is both a scholar and historian, but the thing that makes his decisions on the second amendment right is that they are right.
Do we appoint historians as experts in second amendment cases? No. Historians are biased too, and many reach the wrong conclusions. Everyone takes his pre-theoretical commitments to his work, or his axiomatic irreducibles. I don’t trust historians in general any more than I trust judges, especially as “educated” by modern universities.
We decide second amendment cases per the words of the second amendment, noting the milieu in which it was written, and remembering how idiotic it would have been for them to have just gotten finished fighting a revolution against King George with weapons they owned – risking their lives, families and fortunes – and then turned around and inflicted their own people with gun control laws.
On January 4, 2023 at 12:08 am, Rick said:
My take on Bruen (precisely, the ramifications of the Bruen decision) is the judiciary is forced to think as Originalists. This is not made of new cloth; it is a return to original jurisprudence, repudiation of that school of thought harkening begun under Christopher Columbus Langdell.
On January 4, 2023 at 12:22 am, Rick said:
Jurists are political animals. They exist by that which is politiiically expedient. Some, such as Benitez, seek to educate themselves in the manner, to the level, which is expected of a judge.
Case law and reliance on precedent have had the effect of moving the courts away from that expectation. Jusges have been allowed to become intellectually lazy. A void is created, yet rather than retract the ‘new and improved’, to go back to Originalist doctrine, they seek to modify the existing. Here is how the question of whether the courts should rely on experts is even put forth.
I submit that any judge who seriously consider such prospect be found unsuited as judge and shall be disqualified. It is that serious of a matter.
On January 4, 2023 at 11:11 am, scott s. said:
History is a humanity. Historians may know or have access to a wide range of evidence, but the interpretation of the evidence by historians is not a science.
On January 4, 2023 at 1:36 pm, MTHead said:
How about; “Shall not be infringed.” In any matter of history, it would be hard to confuse.
But this just proves that government cannot handle simple. Simple kills them every time.
The other part is constitutional paranoia. It’s basis is what Hershel mentioned above.
Why would our forefathers fight a war, then saddle us with gun control? The exact act that started the war in the first place.
Reading 3A proves that our framers did not trust government. And all history on the matter proves it.
Case closed. As free humans we don’t need a judge to tell us what right.
On January 5, 2023 at 7:33 am, Latigo Morgan said:
They don’t need an historian as much as they need an English teacher who can explain the meaning of the words and phrasing based on the usage during that time period. After “shall not be infringed” is explained, the rest is moot.
On January 5, 2023 at 9:14 pm, X said:
The entire discussion of “common use” and historical practices is a legal and logical blind alley and should be moot.
On the issue of “common use,” firearm technology changes over time. The .22 LR was not in common use in 1791 because it had not yet been invented — does this mean it is not protected by the Second Amendment and may be summarily banned? By contrast a Colt 1858 black powder revolver was once in common use, but no longer is — may it be banned?
As far as historical practices are concerned, we must remember that the pre-14th Amendment Bill of Rights was intended to limit the federal government only. States were governed not by the 2A but by their respective state constitutions anything, and if their state constitutions permitted it they could ban guns or ban the carry of guns. The 14th Amendment ostensibly made the federal Bill of Rights mandatory across all the states, but of course as we have seen the courts refused to actually incorporate the 2A until 2010.
Despite the fact that the 2A has prohibited the federal government from infringing on the right to keep AND BEAR arms ever since 1791, this has been widely and successfully flouted for decades, from the NFA of 1934 to the GCA of 1968 to the Hughes Amendment to the Brady law. Just try walking onto a military base or into a federal courthouse or into the J. Edgar Hoover building armed and see what they do to you.
It’s ALL f–ing unconstitutional. The text is plain: the right of the people to keep and bear arms, “shall not be infringed.”
They DGAF.
On January 7, 2023 at 10:02 pm, bobdog said:
The older I get, the more I distrust “experts”. Experience has proven me right.