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PaperclipPerfector  3d ago (text post)   14241 thread views

Culture War Roundup for the week of June 22, 2026

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It’s pretty annoying that every gun case now is constitutionally required to be an 18th-century literature review, especially if we have to do the extra work of figuring out which laws were and weren’t racist.

Unfortunately that is primarily because the 2A has been a red headed stepchild in SCOTUS forever - with SCOTUS not taking almost any 2A cases - so they haven't built up much precedent. Going back in history to see what laws were around is how SCOTUS does all the constitutional interpretation, but because they have a ton of built up caselaw they point to those cases (which should eventually point back to founding era stuff) it just seems less like that is what its doing on its face. If SCOTUS were to take up a couple 2A cases each term, like they do for the 1A, we'd have a similarly built up rulings to make things seem more obvious based on previous rulings.

Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment. Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?

As far as laws being racist or not, once a law has been ruled unconstitutional it is considered as though it was always unconstitutional - so citing an unconstitutional law for evidence is a really bad argument. Hence why using the Black Codes for evidence was a nonstarter.

Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?

Yes. That's what Europe does, we know what it looks like.

Before Bruen, the 2A was primarily considered using "interest balancing" unlike every other constitutional amendment.

The difficulty with 2A is that a straightforward reading is not really compatible with a stable modern society. A crazy man with a flintlock musket can only do so much damage, despite it having been the state of the art weapon system for the bulk of military forces. A crazy man with a flock of explosive drones or a fission bomb can do much more damage, and no country can survive engaging in mutually assured destruction diplomacy with the craziest 1% of their citizens individually. Different people may draw the line in slightly different places for 2A, but very few believe that no line should be drawn at all.

This is not so much different from limitations on the 1A. Should it be allowed to promise people rewards for committing crimes? Should it be allowed to make fraudulent bomb threats or SWAT people? Should a mob boss go free as long as all he did was talk to his underlings? All of these are restrictions on free speech, but they are obvious restrictions which are required to have a functioning state at all.

The difficulty with 2A is that a straightforward reading is not really compatible with a stable modern society.

I see this claim thrown around as obviously true on a regular basis but I don't think it really stands up to scrutiny. Something about an armed society being a polite society.

How are you defining "stable" and "modern" in this context? Do New York and California count? Do Texas and Florida not?

First Amending the Constitution we have a process for if an old part of the constitution is that far out of touch with modern society.

A crazy man is NOT what you are afraid of with causing mass casualties. I am thinking about by crazy you mean the street panhandling man with schizophrenia. He’s going to commit enough small crimes to institutionalize him first. By crazy you actually mean high agency but hates people like Osama Bin Laden who can accumulate arms and not commit other crimes. That may not change your argument but it’s still not a crazy person.

Your last paragraphs are not just speech. Paying someone to commit crimes is an act of paying people. They all lead directly to actions that are criminal. There is something going on that is more than just speech but directing physical actions thru speech.

I would say that a fission bomb, or any weapon of mass destruction, is not a weapon you can "bear". (But you still have a point about drones.)

Also, people were allowed to own cannons back then and they could probably do more damage with one than with a musket.

Not only cannon, but privately owned warships were an entire thing.

Can you imagine the courts doing "interest balancing" on whether the government can restrict your speech?

Yes: "time, place, and manner" restrictions on speech are exactly this. I don't point this out to disagree with your substantially correct point that the Court is much less deferential to the Second Amendment than to the First, and frankly I don't think they're nearly deferential enough to the First. But they do engage in "interest balancing" on basically all issues. There is a reason Iustitia wields a balance scale.

The courts mostly have been treating gun regulation as an interest in itself -- often a compelling interest which overrides the First Amendment, as with the Defense Distributed case and various other 3D printing cases. They'd never do anything like that for the First.

That is fair, "time, place, manner" is more interest balancing that I wasn't thinking about - but the scales are much more defined on the first than the second.

You've got three levels with the first amendment: strict scrutiny, intermediate scrutiny, and rational basis. The problem was a lot of courts were treating the 2A with "rational basis" level analysis far too often when they should be treating most with strict scrutiny most commonly which is what I think SCOTUS is slowly building towards if they keep taking on a couple 2A cases per session.

While I expected them to uphold the vampire rule, and am thus surprised, the court is a long way from anything like strict scrutiny, given that in Bruen's footnote 9 they basically give the blue states carte blanche to impose prior restraint on gun rights, as NJ has.

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