banned
WhiningCoil
11mo ago
Man, this reminds me of a community I used to be a part of for something like 15 years, from my childhood through my early 30's. Started off as a bunch of nerdy kids who liked a thing and created their own space to talk about it. Then we grew up, and politics got more and more involved. Then it became almost entirely about arguing politics and trolling one another's trigger points. We had a benevolent autistic overlord who owned the space and maintained strict neutrality, as most of the old internet used to. Then one user launched a coup, stole the domain name, redirected it to his own servers, and banned everyone he disagreed with. Shortly after he shut the place down entirely because banning us wasn't enough, he wanted there to be no public record of him ever having associated with us what so ever, he considered us so politically untouchable.
Canadians, eh?
Eventually most of us that got banned coalesced around a private discord group one of us set up. But it's just no the same, and many of us still grieve the loss of that community.
gattsuru
11mo ago
I'd quibble with DuplexFields about how common dysphoria is among otherkin or therianthropes, barring definitions that require it, but it's definitely something that happens. Duplex compared his version to feeling like wearing a shirt inside out all the time (uh, in now-banned subreddit, sorry for not linking), and while that's an unusual explanation, it's not a particularly extreme one.
Optimistically, if you offered a whole bunch of therianthropes a magical potion, I'd hope some of them would ask for caveats about things like lifespan or opposable thumbs or social integration in their new shapes or pants (cw: no nudity, but might not be the best thing for DuplexFields to binge read), but at best at least some would quite happily jump in after that.
The lack of such a magical solution short of a singularity doesn't really change whether people can feel it: it's a sensation, not a realpolitick'ed set of political philosophy. It changes the degree you can seriously respond to it. There's some socialization stuff that could be relevant on the edges as policy questions -- some therians do feel a lot more normal with prosthesis like tails or ankle braces, which are also socially stigmatized in ways that make them highly impractical outside of Ren Faires -- but there's also reason that it isn't a philosophy with a lot of policy proposals.
gattsuru
11mo ago
It's an interesting piece. I'll repeat from twitter that a few of the flirting-with-salacious bits detract and distract from the central story, even compared to writing out their long-form version (eg, "hosted LemonParty" might well unspool to something like 'archived a whole bunch of sites from a defunct host, which included some shock sites like lemonparty', though I can't find enough information to confirm that).
I didn't think of Sandifer's ban from Wikipedia as the radicalizing point for him, but it's plausible. On the other hand, I'm not sure the timeline quite works out: Sandifer was banned (and the whole Manning rename snafu happened in) October and November 2013, and Manning was first publicly known as trans in August 2013. Gerard was still posting through it on LessWrong proper into 2014, and while it sometimes touched, he was still engaging (cw: the linked story is deadfic, though it did get to a reasonable End of Book One point) with people with opposing viewpoints (if often smearing them elsewhere) in a way that, say, his later tumblr persona never did.
Compare 2013 twitter to 2016. He definitely hadn't gotten to the point where he'd imply his political opponents would be "legally able to administer roofies to female patients", yet, in 2016, either, as close at PigGate got.
((tl;dr of that: It's quite possible that PigGate never happened, and the only evidence in favor was a second-hand story by a man who pointedly separated from David Cameron's political faction over Cameron's support for gay marriage, and coincidentally did he mention it that Cameron allegedly put his todger onto a boar's head roast. But no one liked David Cameron, so who cares if the allegation is being laundered by a homophobe!))
I know that an alternative explanation of 'it's just everything all together that did it' -- increasing frustration that all the insight in LessWrong couldn't dissuade crypto buyers or 'Roko's Basilisk' or neoreactionaries or Rationalist Dark Arts practitioners, the replacement of Palin-like social conservatives with the Trumpist-populist faction, the Kids-and-Boomers Eternal September of mobile smartphones, the collapse of the twitter ratsphere, trans stuff becoming politically centralized, Eugene_Nier and the broader soccon right's disavowal of whatever free speech interests libertarians might have once had -- is kinda meaninglessly vague and far less interesting of a story. And the "it worked, didn't it" answer, where gay marriage won by punching homophobes and the next fights weren't willing to punch hard enough is... personally tempting for me, but probably no more right to Gerard's internal model. And we might not be able to get the real answer anywhere but straight from his mouth, if then, and I don't seem him willing to give either of us the time of day.
SteveKirk
11mo ago
Have you worked on getting this compilation published by Reliable Sources and into the hands of the enemies Gerard has made on Wikipedia? Assuming there are any left who haven't been banned.
TracingWoodgrains
the leaves that are green turn to brown
11mo ago
New from me: Reliable Sources, investigating how longtime malicious critic of this community, RationalWiki sysadmin, and Wikipedia administrator David Gerard launders his grudges into the public record. The article is a bit of a labor of love: I'd been loosely familiar with him from his time in spaces critical of this forum, but I had no clue just how deep the rabbit hole went. For the past five years, he's been on a mission to slash-and-burn "unreliable sources" from Wikipedia, advocating for sites like PinkNews and HuffPost as reliable while pushing to make heterodox and right-wing sources impossible to cite.
Back in the day, Gerard was a surprisingly big fan of Eliezer Yudkowsky and a reasonably good-faith contributor on LessWrong who was alternately friendly and critical. At some point, though, coinciding with the 2012-2014 cultural schism that destroyed old internet culture, he turned more and more against it. After his longtime friend [Elizabeth] Sandifer got banned from Wikipedia for doxxing someone in the wake of Gerard's abusing mod tools to lock Chelsea Manning's article under her new name back in 2013, Gerard seems to have elected to abandon all pretense of good faith on Wikipedia, instead spending years shaping the LessWrong, Slate Star Codex, and other rationalist-adjacent pages to reflect any negative information he could.
In particular, he was directly responsible for more-or-less fabricating ties between LessWrong and neoreaction, going so far as to have his friend self-publish a book (Neoreaction: A Basilisk) that used him as a source for all claimed ties, finding a review of the book from another friend of hers, and sliding that review in as a citation to claim a tie between the two communities. He also fed as much negative info about Scott to the NYT's Cade Metz (an old rival of his) during that whole affair a few years back while repeatedly trying to doxx Scott on his Wikipedia page and editing the page to put the focus on the NYT affair and remove articles critical of the NYT. That behavior, in the end, got him banned from directly editing things related to Scott Alexander, but to this day he remains the primary contributor to e.g. the LessWrong Wikipedia article.
There's much more in the article. The man has thirty years of online history, from running an anti-scientology page on Julian Assange's server back in the day to hosting LemonParty to a whole lot more, and I was caught up by a mad impulse to document All Of It. It's almost impossible to explain this sort of context to uninvolved parties without, well, sitting down, trawling through hundreds of obscure pages, interviewing a bunch of people close to the events, and pulling three decades of online Lore into legible form, so that's what I did.
All the best.
sliders1234
11mo ago
I think we should allow 2-days a year for people to use heroin. Every other day during the year it is banned and punishable by death.
I’ve heard it’s an amazing feeling before your addicted. Everyone gets high once a year and enjoys it. The rest of the year access is impossible so no addiction.
LLM-generated images and videos are controversial, with some arguing they should be banned as they take work away from talented artists. But I've thought of one use case for them that I think even the most ardent opponent of them might begrudgingly concede is reasonable.
There's an early episode of Friends in which Joey secures a gig as a stock photo model, only to later discover to his horror that his photo is being used as part of a PSA to encourage people to get tested for STDs, and now no woman will go near him with a barge pole. It's common enough to have its own trope, and there have been some real life examples. I remember a few years ago in which a guy was hired to be a stock photo model, only to later find that his photo was being used in Reductress articles with titles like "Hero! This Man Watched Porn That Wasn’t About Flushing A Woman’s Head In A Toilet!" - he went on Twitter to assure people that he respects women and had no say in how his likeness was used. What got me thinking about it was that I saw an ad campaign the other day which advises people that the act of even threatening to share revenge porn is itself a criminal offense, with a still image of a man at home being visited by two police officers. I feel kind of bad for the guy in the ad - sure, he agreed to do it, but a nonzero amount of women in his future may well think he's some kind of creep.
So this strikes me as a use case for AI images almost everyone could get behind: if you need a still image to depict a fictional character who is extremely unsympathetic (particularly in PSAs, government ad campaigns and similar), and you're concerned that the actor you hire to portray that character will be mistaken for the real thing by some significant proportion of the public and face abuse, harassment and damage to their career as a result. What do you think? Particularly interested in hearing from people who are very opposed to most applications of AI-generated images.
BahRamYou
11mo ago
PredictIt just seems like a joke of a site, for multiple reasons:
- banned for anyone outside the US
- each market limited to 5000 traders and max $850 bet
- huge "rake"- 10% of winnings + 5% of withdrawal
Do it if you want to gamble and have some fun, but the format means it's hard to make any serious money there and I wouldn't expect the odds to really predict anything.
Plus, in this specific case... Biden himself is saying repeatedly that he's staying in the race, and there's no clear mechanism for the party to remove him.
coffee_enjoyer
☕️
11mo ago
Hunter Biden having any influence is hilarious and horrifying. I’m not sure why no one is talking about this. His past drug use isn’t the issue. The issue is that he’s the most blackmailable person in America. His texts talk about Russian prostitutes, he did god knows what in Ukraine in his free time, he did god knows what when he met with the spy chief on China. He demonstrates poor impulse control and poor ethics (selling access to his father to sensitive foreign countries). And now he’s the one influencing the President. He has been so immunized by the media that, like, what the fuck can the media do to even take him down at this point? We’ve all seen the sex tapes, crack pipes and strange messages, we know he was illegally possessing a firearm, we know he took money from China and oligarchs banned from entering the US. I guess you reap what you sow — if Democrats go down because Hunter influenced Joe to stay in the race, that’s beautiful justice.
jkf
11mo ago
It's not (inherently) fraudulent in Oregon -- it was fraudulent in 2020 in the states where it was banned by statute and 'worked around' by various illegal policies implemented by Democrat-aligned administrators without going through the proper legislative process. (eg. Wisconsin (IIRC?) with their expansion of 'indefinitely confined')
cjet79
11mo ago
On the upside the reports are only going to the mods here. On reddit some reports would go to admin level people, and then we would end up with random posts removed or more rarely people banned/shadowbanned from reddit altogether.
EverythingIsFine
Well, is eventually fine
11mo ago
I'm taking a history of modern (well, post-1600) theater class right now, so come back in a week or two and I'll have something more specific to say about this! My initial impression of what we've talked about so far in class is that telling controversial stories was in fact a central component of at least one modern theater movement, but overall, the history of Broadway seems to be more rooted in American melodrama more than anything else, of which your opinion is a fairly typical representation. So that's a fair take. But more broadly, "making money" and "entertainment first" are not general theatrical principles, and they tend to be more American-specific than universal. What form and content these kind of performing arts have taken and included is usually more closely linked with what society is going through.
For example, there's this fascinating history in England of a few successive movements and genres that reflect the anxieties, restrictions, and feelings of the era. You had Puritans take over for a while who absolutely and passionately loathed theater, and then when the monarchy was kinda-sorta restored and theater was legal again, you had a few interesting things happen. One, you had people who were tired of the super-strict puritan stuff as well as civil war, they wanted happy endings. So several Shakespeare plays were rewritten to have happy endings (Lear survives, Romeo and Juliet are together, etc). They also let women start to act, and "restoration comedy" ended up getting quite raunchy. Then, Enlightenment ideas start to become all the rage. You had this result in some "comedy of manners" and related genres, where plays started reflecting things like "marriage is a social construct/contract". Also, you get "sentimental comedy" as a sort of backlash against the excesses of restoration comedy, where they really weren't very funny but were often set up as a means of preaching moral lessons to people to make better choices. But wait! Enlightenment ideas started to lead to some crazy revolutions and unrest, paired with the beginnings of industrialization and urbanization. Cue Romanticism! Now we're back to emotion over intellect, instinct over reason, basically angst about Enlightenment ideas that seemingly made a mess of things. Shakespeare makes another comeback, plots grow more fantastical again, and this dovetails with advancements in the spectacle and technical side of the stage and increasing popularity.
It is only within that context of changing ideas of "why should I watch theater" and "who should watch theater" (which are extensive and beyond the brief overview here) that soon melodrama was born. In fact what would later become musicals first became popular because, bizarrely, in England for a long time only two (and a third in the summer) theater companies were licensed to do theater, and other play performances were illegal. Yet this only applied to spoken text, so if they threw in some songs here and there, it no longer counted as a banned play, but instead something, uh totally different. Yes your honor, totally different. As another side-note, technically an entire field called "dramaturgy" exists and is exactly what you describe where scripts, cast, sets, etc. are evaluated in context! These people are often attached to theater companies directly, though there are also some in academia, etc. How much they are employed or utilized, well this depends. However, they exist already within the theater community, so this idea that "oh that's the nonprofit realm, get away from my entertainment" is not very accurate.
Amadan
Enjoying my short-lived victory
11mo ago
This is a bad comment. You can think what you like about Biden and you can post links to the various allegations if you want to talk about them or bring them up as evidence that he's bad, but just replying to someone talking about Biden by saying he's a sex pest and a blob creature isn't an argument, it's just hawking and spitting.
Normally you'd just get warned not to do this. But you've been doing this and been warned that if you don't rein it in, you're going to start to get longer bans. Your record is shitty. Eight warnings and two bans, you keep ignoring our requests to chill out, and you come back from your bans just to whine about how they were unfair.
Now you're banned for a week. Returning to whine about how it was unfair is unlikely to result in greater leniency if you continue down this path.
magic9mushroom
If you're going to downvote me, and nobody's already voiced your objection, please reply and tell me
11mo ago
There's no material injury. Trump supporters have an inferiority complex and feel humiliated when college-educated liberals look down on them.
I think this is a stretch. How many have been fired for not hewing to CEL social mores? How many have been threatened with firing to force them to do so? How many have been banned from social media for their political views?
The reason for the asymmetry of "resentment" vs. "contempt" is that the primary ways these classes interact are power relationships, and the power almost always goes the same way; the sneering bureaucrat autowins on most levels of escalation except for the two highest ones - electoral politics and violence.
Jiro
11mo ago
The crazy reality of Martin (etc) is that it really did treat homelessness as "a class with an immutable status that confers protections". In particular, under that line of cases, the involuntarily homeless could not be punished for anything that was a logical necessity for the homeless.
And the dissent didn't really bother with that. In Powell v. Texas the court ruled that just because the crime was involuntary doesn't mean it couldn't be banned. So the dissent denies that it's about being involuntary:
The Powell Court considered a statute that criminalized voluntary conduct (getting drunk) that could be rendered involuntary by a status (al- coholism); here, the Ordinances criminalize conduct (sleeping outside) that defines a particular status (homelessness). So unlike the debate in Powell, this case does not turn on whether the criminalized actions are “ ‘involuntary’ or ‘occasioned by’ ” a particular status.
curious_straight_ca
11mo ago
A joke's supposed to be funny
Okay to be more clear I have made jokes like that and worse hundreds of times, as far as offensive jokes go it's one of the mainstays. Homosexuals reproduce by... I can understand not having that taste in humor, but it's simply a joke.
But seeing as children are stupid and impressionable, what then are we to think of 'sex education' aimed at preteens
Retread of past discussions, but, like, have you used the internet and interacted with teenagers? They watch a lot of porn. A few years ago I was organizing some video game thing and we banned several minors because they just kept posting porn, and screenshots of them dming each other weird porn. I do not think sex ed is a notable place where kids learn about weird sex stuff, I think they basically all learn it on the internet and from their friends. This may be bad, but it doesn't have much to do with sex ed, which in turn isn't directly connected to the original thesis about LGBT online communities and toaster intercourse
One of the weirder things out there I found while looking into body positivity-I was incredulous- is that there's is a seemingly huge website that rewards pretty women for being fat and showing it off or getting even fatter
Yeah, feeders, it's terrifying. There's a lot of ridiculous things. People who cut their penises off as a fetish, nullos. Self-harm fetishes. Anal prolapse!
sliders1234
11mo ago
Fuck neoliberal. They banned me for being an origional Milton Friedman reading, Pinochet backing, University of Chicago neoliberal.
Did you ever read Meditation on Moloch? The argument, briefly stated, is that in a state of high competition people will end up being forced to compromise on anything that doesn’t provide competitive advantage in order to keep up.
In China, for example, that meant children sacrificing almost all leisure time to study at cram schools. The hierarchy of ability ultimately shook out the same way (because everyone was cramming) but everyone had to bear an extra load of useless misery. AFAIK when Xi banned cram schools everybody breathed a sigh of relief and nothing else changed.
I think the same applies to adderall. One of the limiting factors on how much we can throw away for competitive advantage is our physical capacity for concentrated work.
The vast majority of people literally cannot focus on boring tasks for 12 hours a day and so can’t be compelled to. The rise of adderall has the potential to change that. I for one would rather ban it than live in a world that’s exactly like this one but where white collar jobs expect 12 hours of focus a day.
Notably, this has to be done collectively or else people will ‘cheat’ by sabotaging the commons for good grades.
"Dems R (the) Real Racists." It can mean a few different things, but usually making fun of conservatives who take liberal arguments at face value and smugly call out perceived hypocrisy, accomplishing nothing except legitimizing the liberal frame.
You know "ha, dumb libs banned high school algebra for Racial Equity, guess they're the real racists for thinking blacks can't do math! Vote Republican for true Racial Equity Praxis!"
curious_straight_ca
1yr ago
Devon's tweets are terrible. Even for a conclusion his audience already believes, the arguments appear to just be made up. And unfortunately he's very talented at making things up, as the popularity of his book shows. Take this lovely tweet:
"Fascism is when boring normie dullards make it illegal to be weird, then kill all the bright, creative, and interesting people out of knee-jerk tribalism and fear."
That is bad! It's not fascism, though. Fascism was not normie. It was very weird. It attracted some of the best artists and intellectuals. You write sentences like this when your motivation is "I want to OWN my twitter enemies", and not "I want to understand fascism, the political ideology".
The same thing applies to this thread. There just nothing there beneath a series of insults. Reading it literally, the toaster-fucker problem's blamed on the internet. So the internet existing is a necessary condition for today's LGBT weirdness, because it's necessary for social status games to cycle into irrationality. But irrational social fads are not at all new, and the LGBT thing is less intense and insane than some past ones, such as disputes between or within religious sects over abstruse religious doctrine. Even the LGBT movement was as weird in the past, with many activists also pushing to remove the age of consent. And since excessive competition over status signals has always been a human tendency, does this theory actually explain anything? There are clearly patterns to 'wokeness' - historically oppressed minority sexualities, minority races, etc - and this theory doesn't tell us why the bureaucratic caste would become obsessed with those instead of another of the ten thousand niche internet communities.
And in the toaster-fucking group, the axis of prestige aligns with fucking toasters. So first they compete to see who can fuck the most toasters. Then, when that is saturated, they one up each other by being most open with the general public about their toaster fucking ways.
Sure, this has happened in the online gay community, like it has in the online fishing community and online retro video game community. This is part of why the online gay community is so weird. We wanted to explain why the 'bureaucratic caste' is so pro-gay, though.
Then they move on to bragging about how they sneak into other people's kitchens and fuck their toasters, too, and swap tips for how to introduce kids to the joys of toaster-fucking.
This is a well written snipe, but if we unpack the analogy it's not really true, we're ignoring the differences between different "they"s. The person from the previous quote, say a gay dude who competes to get the most likes on photos of him tied up while getting fucked by two other guys, is not actually 'swapping tips for how to introduce kids to the joys of toaster-fucking'. He's referencing trans kids there, but trans evangelism to trans kids happens because of (probably false) beliefs like - trans kids are being repressed by society - introducing them to the idea will help them be their true selves and prevent suicide - etc. This memeplex, and the fact that it perpetuates itself, isn't explained by 'toaster-fucking'.
Pretty soon normal people, who ten years before would shrugged and said "that's weird", are now sick of toaster-fucker flags everywhere and their kids being told to fuck toasters by sickos, and now they're going to burn every toaster-fucker flag they see, and Florida just passed a law requiring you to be 21 years old with proof of ID to buy a toaster. And Utah has banned toasters altogether and the Mormons have stopped even eating toast, bagels, waffles, or any other heated bread product.
This is clearly implying a general anti-gay backlash, but as other comments point out this isn't happening! The minor decreases in LGBT-support for gen z are within the margins of error.
Because a few toaster-fuckers get beaten with fence posts by people sick of hearing about toaster-fucking, and other people, who didn't see or hear the toaster-fuckers' prior behavior, say "holy shit, toaster fuckers really are oppressed". And they decide to become "toaster-fucker allies", despite the fact that they haven't the slightest real interest in fucking any toasters themselves.
... And then the premise here isn't true, so the conclusion isn't either. There's no huge anti-gay backlash, hate crimes are decreasing, and yet allyship goes way up! If the number of people who are strongly anti-gay is much smaller than it was before the internet existed, it doesn't make sense to attribute causation to "toaster-fucking" for this. There are real explanations here, ones that depend on the particulars of LGBT ideas and "oppression", but this isn't it.
This is what "go outside and touch grass" really means. It doesn't mean that plants magically cure insanity, it means go encounter randomly selected people who have nothing to do with you other than geographic proximity. The purpose of this is to remember what normal people are like, and what normalcy is.
And then, atop this collapsing foundation, the solution: "be normal". But we can trivially observe this doesn't work - the whole phenomena to be explained is that many people, otherwise normal people, are strangely enthused about being LGBT allies, and this happened despite being in contact with many other normal people. Or does he mean that it's the "toaster-fuckers" who need to be normal - that they need to stop posting about their sex lives online, and then a few years later suburban moms will stop putting up LGBT flags? Really?
The whole thing doesn't work. The picture it's painting is a disconnected series of vibes.
yofuckreddit
1yr ago
More visible than the fricking President of the United States?
...Yes.
The president's "visibility" was limited in every possible way by the leftist media apparatus. I mean, cmon - he was banned from twitter.
When CNN couldn't avoid covering him at all, they showed spliced single-digit-second clips sandwiched in between minutes of talking-head diatribes.
Fox's power as a sympathetic outlet is minimal. It's been unpalatable to anyone in the moderate space forever. Even if you agree with some of the points, it's not any better. The diatribes are far rougher around the edges - they feel simultaneously more hateful and pandering. And when you're done with those you have to sit through ads for adult diapers.
The bully pulpit became far less bully in those Unprecedented Times.
I have a model (not, I think, original) of three ideal types:
(1) People interested in things. Their ideal book would be a hard sci-fi book that explains how the time machine/interstellar space craft actually works. I have known a few people who embody this almost perfectly and they are either about as autistic as you can be while still being functional OR successful salt-of-the-earth tradesmen.
(2) People interested in abstract ideas. I think that people who gravitate towards classic dystopian fiction, as well as Big Theory sci-fi like Dune or some of Asimov's work, tend to be this way, as well as mathematicians, philosophers, theologians, theoretical physicists etc.
(3) People interested in people. They like books about people. This is almost all books regarded as "classic" literature, as well as a lot of any genre of books, as well as a lot of entertainment in general.
My classic image of (3) is a high school English teacher, who are also at least partly responsible for putting many of type (1) and (2) people off reading fiction. Works like the Dune novels and Asimov's books/stories were literally banned as dissertation topics at my high school due to "insufficient literary merit"; I was just about able to convince them to let me write about Dostoevsky, but I was strongly encouraged to write about the characters rather than the ideas. I know another person who had the same experience with Brave New World and Nineteen-Eighty Four, which were too respected to be banned as topics. You were supposed to write about Jane Austen, Shakespeare (as long as you focused on style and characters), George Elliott (or F. Scott Fitzgerald if you weren't bright) and the like: character-focused, with minimal action, and certainly no in-depth discussions of how a time machine worked.
Crowstep
1yr ago
I think it's just natural churn. Life gets in the way, and long time users will eventually fall away. I know I've been purposely trying to reduce my 'arguing on the internet' time.
On Reddit, this wasn't a problem because there was a constant source of new users. On here that's not the case.
I guess the future of the forum is to decline to nothing or go back to Reddit (and maybe get banned for wrongthink there in a few years).
The other four cases I didn't get to before:
Erlinger v. United States
6-3. Opinion by Gorsuch, joined by Roberts, Thomas, Sotomayor, Kagan, and Barrett. Roberts and Thomas write concurrences. Kavanaugh dissents, joined by Alito and by Jackson in part, and Jackson has another dissent.
This case is about the application of the fifth and sixth amendments in the right to a jury. The case is over whether the determination whether several past offenses are on separate occasions or one occasion requires a jury, or whether it can be judged by a judge.
There are two main relevant background cases to the various opinions, though several others are cited. In Apprendi, in 2000, they ruled that in general, facts affecting "the prescribed range of penalties" in a way that harms the defendant must be judged by a jury. In Almaendarez-Torres, in 1998, they ruled, including Thomas, that judges could find facts regarding whether past sentencing, like checking whether they had a past conviction, without the jury needing to rule that. They disagree on how broadly these apply.
Gorsuch, writing for the majority rules that this case requires a jury. He argues that Almendarez-Torres is only a narrow exception, and seems kind of open to overturning it anyway. He addresses the practical concern that bringing up past offenses would prejudice the jury by mentioning the option of bifurcating the trial, where first they would judge innocence and guilt in the present case, and then, for the purposes of sentencing, consider whether he committed the previous crimes on different occasions. He acknowledges that jury trials are not the most efficient, but thinks that it is important.
Roberts notes in a one paragraph concurrence that in the case of violations of this, they should bring up harmless error review, where it must be considered whether any harm is actually broght about by the violation of this.
Thomas writes briefly to argue that Almandarez-Torres should be overturned. He was the deciding vote in that case, but has since changed his mind and repeatedly argued against it.
Kavanaugh dissents, with Alito, and Jackson, in part. He reads Almendarez-Torres more broadly, making it about recidivism in general, rather than more narrowly about whether cases exist. He cites all 12 circuits in agreeing that judges may decide whether they were different occasions. He brings up that the harmless-error rule will mean, at least, that people already convicted don't need to be released just because their right to a jury had been infringed, as presumably in most cases, a jury would come to the same decision, as it's often rather obvious that they were on different occasions. (Even in this case, the three felonies were committed on three different days of one week, at different locations, etc.—which definitely seems like different occasions.) It's this third part about it being harmless that Jackson refuses to sign onto, which is kind of crazy. Does she want a ton of people released, when she thinks it's right? I don't get it. Kavanaugh then spends the remainder of his opinion arguing that Almendarez-Torres should not be overruled, turning to history to argue that it's not egregiously wrong, and then also arguing that even were it wrong, even were it egregiously wrong, and it's still of little enough harm, and bad would come of it (like bringing up prejudicial matters), that, by stare decisis, it should stay. (Kavanaugh also at one point cites some of Barrett's work on Stare Decisis before she was a justice, which I found interesting.)
Jackson writes to argue that Apprendi is bad, that more should be able to be done by the judge. She turns to some history. (It should be noted that Apprendi does not strip discretion from judges in sentencing. It only requires the jury to determine which sentencing scheme should apply—the judge still often has some level of discretion, of something between maximum and minimum sentences. Apprendi only rules that the jury is needed to decide which scheme.) She argues that fact-finding at sentencing is different from what the jury does—for example, they can consider more factors—and that juries only really have to decide things about guilt or innocence, not what sentence it should receive. She also points out that judges cannot. Jackson argues that Apprendi is harmful, in that it limits legislatures' ability to lay down sentencing rules, leaving more discretion with judges. She points to as particularly sobering that there are greater racial disparities in sentencing between "similarly situated Black and White male dependents" since Apprendi was ruled, and so she concludes that it might hinder having a fair sentencing system. (My own thoughts briefly: my snap reaction was to point to racial disparities in crime, to make what she is saying laughable, but that is less obviously the case since she says that it is for "similarly situated" defendants. I would have to read the paper, but don't care enough to do so. I'm still inclined to think that it's most likely due to differences in behavior, though, if they are more or less likely to have factors that make a more or less lenient sentence better—the legislative rules probably weren't considering as much as the judges were.) Turning from Apprendi to the court's judgment in this case, she argues, like Kavanaugh, but at greater length, that it would be prejudicial, and seems to think that that would be the case even in a bifurcated trial. Jackson also thinks that there are practical limitations, because the judge is more used to considering things than juries, claiming that this is "unworkable."
Texas v. New Mexico and Colorado
Opinion by Jackson, joined by Roberts, Sotomayor, Kagan, and Kavanaugh. Gorsuch dissents, joined by the rest.
This case is a little different from others in that it isn't the result of appealing things up to the court, but the Supreme Court has original jurisdiction. This case is about the water rights of Texas and New Mexico over the Rio Grande. More groundwater has been pumped in New Mexico, which effectively ends up lowering the amount of water that Texas receives. Texas and New Mexico came to a consent agreement. The question now is whether the United States can keep that agreement from going into place.
Jackson's analysis, with the majority, is fairly straightforward: the consent agreement tries to get rid of the US claims. The United State's claims are valid, because it requires use in the Rio Grande Project and Downstream Contracts, and must supply water to Mexico. Further, it was granted a place in this in 2018, and nothing has changed. But a consent agreement can't get rid of the claims of other parties, so it should be fine.
Gorsuch argues that: first, the consent decree, in setting where it should be measured and how much water to be delivered, is consistent with the Compact. Second, "the consent decree does not impose any new improper duty or obligation on the federal government or deny it to the ability to pursue any valid claim it may have." That is, it does bind the federal reclamation authorities in their use of water, but it does the same thing as they have been doing for decades, so this can't be improper, and the government doesn't argue that it would prevent it from doing anything that it needs to. It also doesn't get rid of claims from the federal government. He accepts the recommendation to "dismiss them without prejudice"—that is, so they can be relitigated—which Gorsuch says is appropriate and the preferred way to address remaining questions after an interstate pursuit. (Recall that, because this was a case between states, this is part of ordinary jurisdiction. Dismissing them without prejudice would allow them to go through lower courts, instead of straight to the supreme court.) He cites another case to back up that dismissing without prejudice is fine. Gorsuch argues that the majority is wrong that this would dispose of federal claims, that they show no reason not to follow their ordinary practice in original jurisdiction cases, they do not really show in what capacity the US has claims, that the majority ignores the usual water law jurisprudence in that the federal reclamation projects are supposed to comply with consent decrees, and that it doesn't follow the principles of consent decrees, because this compact grants what the US had originally sought in this case. Gorsuch then argues that the majority is wrong in its turn to the majority's past admittance, as they were asked in the 2018 case not to reach the question then as to whether the US could independently bring claims, and that the reasons that they had taken the unusual step of allowing them to participate then no longer apply.
I found Gorsuch pretty convincing. As a side note, it's not clear to me why this ended up roughly along the left/right split. Are the liberals, Roberts and Kavanaugh more sympathetic to the federal government having more power in general?
Department of state v. Muñoz
6-3 conservatives vs. liberals. Barrett's opinion, joined by all conservatives but Gorsuch. Gorsuch concurs in the judgment. Sotomayor dissents, joined by the liberals.
Sandra Muñoz and Luis Asencio-Cordero are married. Muñoz is a US citizen, and Asencio-Cordero was here illegally. There is a process for him to enter, but it requires him returning to his home country, and applying for a visa with the consulate. He was declined, claimed to be a member of MS–13. Muñoz filed to challenge the decision, claiming that she has a right to live with her spouse, protected by "liberty" in the fifth amendment, that the visa denial "deprived her of this interest, thereby triggering her right to due process; the consular officer violated her right to due process by declining to disclose the basis for finding [her husband] inadmissible; and this, in turn enables judicial review, even though visa denials are unreviewable."
Barrett argues that that fails at the outset: there's no right to bring her noncitizen spouse to the United States. Some relevant background she gives: visa denials are generally nonreviewable, with the exception of when it is alleged to burden the constitutional rights of a U.S. citizen (hence why Muñoz is the one to bring up the challenge), but even then, it's constrained, as the courts can only look at whether they gave a "facially legitimate and bona fide" reason for denying it (under Mandel), not checking whether it's right. The question, then, is did this burden any of Muñoz' rights here.
Under the due process clause of the fifth amendment (note, not the fourteenth amendment), due process is needed before deprivation of life, liberty or property. This includes "heightened protection against government interference with certain fundamental rights and liberty interests." But unenumerated rights of this sort—that is, substantive due process—need, per Glucksberg, "a careful description of the asserted fundamental liberty interest" and it protects only those rights "objectively, deeply rooted in this Nation's history and tradition." The claim here, as formulated by Barrett, is "the right to reside with her noncitizen spouse in the United States," though this is articulated less distinctly by Muñoz. Muñoz asks only for a right that "cannot be unduly burdened without procedural due process." Barrett describes this as unique, "a substantive due process right that gets only procedural due process protection." Barrett thinks that Muñoz fails the second step, as this is not "deeply rooted in this Nation's history and tradition." She cites Madison saying that immigration was "of favor [and] not of right," (Edit: I've since seen something saying that this was not a very strong quote from Madison, as it was in a hypothetical) and cites also various acts which made throughout the country's history which do not have any exception for spouses. Barrett concedes that several acts do involve making it easier for spouses, but rejoins that this is not as a right, but as "a matter of legislative grace. She cites especially Knauff, where the court upheld denying a wife entry, with no hearing given, and the reason confidential.
Further, the right would be odd: a right to intervene in someone else's legal proceeding? Could a spouse challenge a prison sentence, or a deployment overseas? Barrett exposits O'Bannon to show that the court has ruled in the past that indirect burdening of rights do not prevent governmental action. Barrett finishes by explaining Mandel, which had been cited by the pro-Muñoz side. Mandel had involved some professors challenging under the first amendment a visa denial of a Marxist, who came to speak. SCOTUS then said that because they were given a "facially legitimate and bona fide reason," for denying it under the specific provision, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Barrett clarifies that Mandel's citation is actually about avoiding having to adjudicate a question of statutory interpretation, not about procedural due process.
Gorsuch argues that the constitutional questions should not be under discussion, as the information, which is what Muñoz asked for, has been given, and so there is no need.
Sotomayor opens by citing Obergefell. Rather than framing it as a more narrow right, she frames the question as about the right to marry—whether this is a burden of Muñoz's marriage rights. She claims that the majority's claim in Dobbs v. Jackson that that case did not undermine other substantive due process is evidently false, by this result. In their going through the history, Sotomayor dwells more on the entire process that led to this case, with the husband leaving the country, while Barrett had focused more narrowly on the application to reenter (Barrett critiques some of what the dissent does as just going after immigration policy and the competence of immigration officials, which is not something for SCOTUS to judge). Sotomayor exposits the marriage rights given in past precedent. (Among which, she chooses, for some reason to cite Roe v. Wade) She notes, citing Obergefell, that the marriage rights are in these cases evaluated expansively, not as separate individual rights, as Barrett did in this case. (E.g. Loving is about the right to marriage, not to interracial marriage.) She takes it as a given that Muñoz' rights are burdened, as in Loving and Obergefell, the couples were not bound to stay in the places where their marriages were, to that point, legal. Sotomayor argues that Mandel grants Muñoz the "substantive due process right that gets only procedural due process protection," as Barrett characterized it, and so she is entitled to a "facially legitimate and bona fide reason." Sotomayor argues that the majority's concerns about prisons, or removal proceedings, would be limited by the rights already inherent in those persons, and so this ruling would have no effect, unlike this case, where the husband has no due process protection. Sotomayor finishes by turning to Knauff to point out the larger context: public outcry, bills from congress, and eventual admittance. (Barrett responds in a footnote that Knauff was still "good law" that has been "repeatedly affirmed.")
The most meaningful response to the dissent from Barrett is footnote 9, in full:
The dissent never addresses the actual issue in this case, which is whether the Judiciary has any authority to review visa determinations made by the State Department. Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. See post, at 11–14. To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right. By contrast, the dissent would upend more than a century’s worth of this Court’s precedent regarding the doctrine of consular nonreviewability, not to mention equally longstanding congressional and Executive Branch practice. Ibid.
Assorted thoughts: I think Thomas is opposed to substantive due process altogether; I'm surprised he didn't bring that up. This case is sad; it feels like the people got screwed over. Also, this didn't really belong in the summary above, but at one point Sotomayor included the word "Latinx" in a quote, which was silly.
United States v. Rahimi
8-1. Opinion by Roberts, signed onto by all the justices but Thomas. Sotomayor (joined by Kagan), Gorsuch, Kavanaugh, Barrett, and Jackson all file concurrences; Thomas dissents.
Yes, that's seven people writing, all but Alito and Kagan. The case is about whether prohibiting individuals who are under a restraining order for domestic violence may be prohibited from possessing a firearm. It is especially interesting for the jurisprudence of the various judges and their attitude towards history and originalism.
Rahimi had a restraining order put on him due to domestic violence. (And it's pretty bad: including threatening to shoot his girlfriend.) The restraining order made it illegal to possess a firearm. Rahimi afterwards committed at least six (nonlethal) shootings, and was indicted for possessing a firearm despite being under that restraining order. He here argues that such a restriction is unconstitutional under the second amendment.
Two years ago, Bruen ruled significantly expanded gun rights, striking down New York's "may-issue" carry permitting laws. Moreover, and more significantly for this case, Bruen changed the governing principle from a two-part test to historical arguments. That is, Bruen argued that the proper lens is not by looking at various competing interests, but looking simply at what the right contained in the second amendment involves, and doing so by looking at historic laws around firearms. Likewise, other courts are to subsequently judge gun laws along the same lines: is this in some way infringing upon the second amendment, or would this right be understood as an exception, with the rule of judgment being historical.
In this case, then, the court attempts to rule in accord with Bruen, though with some dispute over how exactly to do so: the author of Bruen, Thomas, dissents against all the other justices, as they, including those who agreed with Bruen, apply it to this case, while most of them present their own arguments giving their views of constitutional analysis and history.
Alright, let's get into it.
After going briefly over the facts of Rahimi, Roberts turns to interpretation of the second amendment. Having explained that the Second Amendment "is not unlimited" (quoting Heller), he explains the bar: constitutional text and history, and, as per Bruen, examination of the historical tradition of firearm regulation. He clarifies that these do not make there to be "a law trapped in amber" (which iconic phrase four of the five concurrences go on to cite). More regulations are permissible. The correct analysis involves looking at "the principles that underpin our regulatory tradition," and so judges are to look whether the law is "relevantly similar," "applying faithfully the balance struck by the founding generation to modern circumstances." Both why and how the regulation burdens the right are central. Finding historical regulation does not require that there be a "historical twin," but it must be analogous. All this was an exposition of Bruen.
Now, in application:
Rahimi challenges the section 922(g)(8) on its face. That is, the defendant must "establish that no set of circumstances exists under which the Act would be valid," so, to defeat Rahimi's challenge, it only must be constitutional in some application. In this case, it is constitutional as applied to Rahimi. Section 922(g)(8)(C)(i) makes possession of a firearm illegal if the restraining order says that he "poses a credible threat to the physical safety" of a protected person.
Roberts turns to look at the history: while there existed firearms regulations in England, by the time of the founding, these were mostly, but not entirely gone. There were still regulations against people threatening others. They were often done through non-firearm specific law, such as prohibitions on fighting, or suits against people who threatened others. But in the time frame that all agree is relevant, there were two "legal regimes" targeting firearms violence: surety laws, and affray laws. Surety laws could be demanded by private citizens, where an individual could be obligated to post a bond, which would be forfeit if they failed to keep the peace. In their application to firearms, someone with reasonable cause to fear could complain to the judge, who could, if he judged cause, summon the accused, and require a bond for up to six months, of someone who went about armed with any "offensive and dangerous weapon". The person could get an exception if he needed them for self-defense or "some other legitimate reason." The second sort of laws were affray laws, which (besides some prohibiting fighting) prohibited outright "riding or going armed, with dangerous or unusual weapons, [to] terrify the good people of the land."
From these, Roberts draws the principle that "When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed." In this case, Section 922(g(8)(C)(i) applies to those threatening others' physical safety, and unlike the law struck down in Bruen, applies only to demonstrated threats of physical violence, not just anyone. Further, like the surety laws, Section 922(g)(8)'s restriction is temporary, and the penalty is less severe than the affray laws' imprisonment. Roberts goes on to address how the surety laws are different in relation to this instance than in Bruen, where they were not a good analogue to the regulation there struck down.
Roberts addresses Thomas' dissent and the Fifth Circuit, which comes to the opposite conclusion. He says that Thomas accepts the "why", but objects to the "how." Roberts notes that a historical twin is not necessary, and that the fifth circuit did not treat that it was a facial challenge correctly, looking at the law considering cases where it might be more constitutionally questionable, instead of at the most constitutionally sound ones. Roberts also rejects the Government's argument that Rahimi may be stripped of his weapons merely for not being responsible.
Now to Thomas, to give the contrasting view, before we turn to the evaluation from the concurrences. In his opening section, he describes the regulation as fairly broad: not requiring that a person has actually committed a crime of domestic violence, not from a conviction or criminal history, not distinguishing "contested orders from joint order", without due process, as though there is process for the underlying restraining order, the firearms prohibition itself has not process. And the prohibition has sizable penalties.
Thomas gives his own recounting of Bruen, noting that "while a historical law need not be a 'historical twin," it must be 'well established and representative' to serve as a historical analogue." Further, when a regulation addresses a long-existing societal problem, the lack of a similar regulation addressing the matter, or a regulation addressing the problem through "materially differnt means" could indicate unconstitutionality.
Thomas argues that there is no evidence that it is consistent with the country's "historical tradition of firearm regulation," but rather they were addressed through the "materially different" surety laws.
All can agree that the regulation goes after something protected by the Second Amendment's text, as it prohibits possessing or using firearms. So then it is necessary that the government show that it's fine anyway due to the historical tradition, which, Thomas argues, it fails to do. Thomas runs through the various claims of the government that restrict firearms. First, he addresses English precedent, which are not relevant because the Second Amendment originates in resistance to these English laws: because of their use, Englishmen came to want to keep arms, and, at the time of the Glorious Revolution, secured to Protestants a guarantee against disarmament (Speaking from my own Protestant self, obviously the correct conclusion from this is that only Protestants should be allowed to be armed.). And so it would be "passing strange" if the very laws in resistance to which the tradition leading to the second amendment originated were an argument to limit its scope. But even supposing that they were, they aren't the same, because those laws were about rebellion and so forth, not private threats. Second, the government points to "historical commentary referring to the right of 'peaceable' citizens to carry arms," referring mostly to two failed constitutional proposals. But Thomas cites precedent that relying of drafting history is questionable, and points out that both of these were rejected, and in the case of Adams' proposal, caused alarm. And peaceable seems to be interpreted again in relation to rebellion, not private violence. Third, the government cites firearm storage laws that forfeit improperly stored firearms. But Thomas argues that those did not "impose a comparable burden" to the law now in question, as they allowed people to keep other, properly stored firearms and buy new ones. It still leaves the people with some Second Amendment rights, not none. And he rejects the government drawing from that that people who would not be 'responsible' can have firearms removed, comparing it to when, in Bruen, New York argued, from the history of firearms being banned in certain sensitive places, that the entirety of Manhattan is a sensitive place. And so, he concludes, the government failed.
Thomas cites surety laws as something with a common justification, that is, addressing the same issue, but a materially different burden, pointing out that they did not alter an individual's right to keep and bear arms, as he could continue to do all of that once providing a surety. But section 922(g)(8) strips it altogether. (And is sweeping, including even the constituent parts of ammunition. He also notes in a footnote that, though this isn't the issue at hand, he does not expect it would be legitimate under a commerce clause challenge.) This makes them fairly different: surety laws preserve a right and punishing subsequent infringment with a fine, versus stripping of the right, and punishing infringment with a felony, and permanent revocation of a second amendment right.
Thomas then addresses the court. He argues that Bruen, contrary to the court's portrayal, treated the surety laws as fairly different from a ban. Therefore, they do not impose an equivalent burden. Thomas argues that affray laws are different because they are fundamentally public, involving bearing arms in such a way as to "terrify the good people of the land," and so did not cover domestic violence. They also have a non-analogus burden, in that they only prohibit "dangerous and unusual weapons" carried in a "terrifying" manner, in public, whereas 922(g)(8) is far more expansive, banning all Second Amendment-protected activity. Thomas rejoins to Roberts' argument that they are lesser than imprisonment, and so a lesser burden, by saying that that highlights a difference: they penalize past behavior, versus seeking to prevent future behavior. And they occur with far more process, versus merely a hearing.
Thomas argues that the Court's "stich[ing] together" the two is illegitimate, as there must be a single historical law. He cites Bruen, saying that the two regulation must be relevantly similar, and says that what the court does "defeats the purpose of historical inquiry altogether. Since imprisonment, which involves disarming, existed, the government will always satisfy the comparable-birden requirement, so they now only need to find a law with a comparable justification. And so, he argues, laws fining some behavior could, by such stitching, justfiy disarming someone from that behavior, which is a "regulatory blank check" that the Second Amendment is meant to prevent.
He also rejects the government's attempt to make things about whether a citizen is "responsible" and "law-abiding." He also rejects the government's suggested dangerousness test, which is not historically viable as he argued previously. He cites the government's evidence as evidence against approaching it based on "generalized principles," pointing to the colonial disarming of "classes of people" considered threats, which he analogizes to the seizure of firearms from freedmen after the civil war. Citing such examples, he argues that their admittance would allow for the disarming of minority groups now.
Thomas closes by saying that states can still prosecute those who use a firearm to threaten physical violence, but that this law is not consistent with the second amendment.
To summarize briefly, then, Roberts was more in favor of interpreting laws broadly and accepting principles, while Thomas was more narrow and needed closer and more complete analogues.
Let us, then, turn to some of the concurrences, to hear their various opinions. First, Sotomayor's (which Kagan joined). To quote, "Even under Bruen, this is an easy case," agreeing with the court that disarmament of those posing a credible threat is permissible, from the surety and affray laws, taken together, and that disarmament is permissible. She highlights that Roberts referred to finding the "principles" behind the regulatory tradition, and characterizes this as clarifying for courts the way to interpret Bruen: by means of principles. She rejects the dissent's approach, in its "strictest" interpretation, "viewing any basis for distinction as fatal." Sotomayor thinks that the societal problem has materially changed (in that guns are more dangerous now), and that we have changed in what we consider necessary, including, for example, the law being "more likely to protect husbands who abused their spouses than offer some measure of accountability." (I should note, since I don't think I did before, both Roberts and Thomas had cited that surety laws could be granted to women against their spouses in the case of domestic violence.)
With that note of gladness at the less strict way in which Bruen is interpreted, Sotomayor then expresses her displeasure with Bruen's historical approach overall: she would view the Second Amendment as allowing "legislators to take account of the serious problems posed by gun violence," not just looking at the past. She would prefer the means-end scrutiny, which the court "regularly use[s]…in cases involving other constitutional provisions." That is, courts considering the State's interest in preventing gun violence, the effectiveness of the contested law, the degree of burdening the Second Amendment right, and less restrictive alternatives. This was what happened for the second amendment prior to Bruen. In this case, the Government has an interest in keeping firearms from domestic abusers (and she cites that they are more likely to murder). Section 922(g)(8) is tailored specifically to guns, and so should be acceptable at any level of scrutiny.
Jackson writes also to complain about Bruen's history-and-tradition test. She notes Robert's brief comment that some court's have misunderstood, saying that "the blame may lie with us, not with them." Jackson notes that legal standards are not in a vacuum, but must be applied by lower court's. And so, the court should keep in mind the common-law tradition of "promoting clarity and consistency in the application of our precedent." And so, confused courts should be a reason for concern. She cites in a footnote twelve instances of judges in lower courts complaining about it. She contrasts that with "relative harmony" prior to Bruen, though she characterizes Heller, which first granted individual keeping of arms for self-defense, as somewhat disruptive. As Bruen rejects the two-step method that followed in favor of a one-step historical approach, the legislators must find and produce, and courts examine "troves of centuries-old documentation" for evidence. She casts doubt on their qualification to do so. She thinks further that this is a good example of such confusion: that the Fifth circuit had come to the opposite conclusion as SCOTUS did. She characterizes the evaluation of all this as "exceedingly difficult." It depends on what sources, and what level of generality, which have not been clarified, as well as several other questions. (In another footnote, she says that the founders new that new solutions to traditional problems would be needed, and so adopted principles allowing for flexibility.) And so she thinks that there are serious issues with application of these, which makes this a bad standard. (But agrees that the majority, in this case, applied it accurately.)
Now to the three concurrences of the three Trump appointees, which articulate three distinct judicial philosophies.
Kavanaugh writes a 24-page concurrence "to review the proper roles of text, history, and precedent in constitutional interpretation." "The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood." "In many important provisions, the Constitution is a document of majestic specificity with strikingly clean prose." He cites over 20 examples. One is the four-year presidential term. In cases where the text is clear, "resort to collateral aids to interpretation is unnecessary and cannot be indulged in." But others are more vague, and not "specifically worded but…couched in general phraseology." This is especially the case for "the broadly worded or vague individual-rights provisions," like the first or second amendments. It has long been recognized that there are exceptions: in the case of the first amendment, there are restrictions in a few limited areas, such as obscenity, defamation, fraud, and incitement. Likewise, the second amendment was recognized by Heller not to be unlimited; there can be restrictions on manner and purpose.
One question, then, is how to interpret such provisions. He notes in a footnote that this can be framed in two ways: as "(1) determining the exceptions to a constitutional right or (2) determining the affirmative scope or contours of that constitutional right." They are ultimately the same question, as they look at whether the constitutional right permits the law, but he prefers here to refer to them as exceptions, to highlight what the baseline is: protection of the right. Aside from precedent, there are two main ways to decide: history, or policy. History looks at things before and after ratification to help discern the meaning and principles embodied in that text. Policy depends on the philosophy or policy opinions of the judge. History, not policy, is the proper guide. History has long been the thing to turn to for the court. It supplies evidence of the original meaning. It is far less subjective. It better befits the neutral judge—an umpire, not someone who fabricates constitutional meaning. So without precedent, if there is ambiguity in the constitutional text, history is the proper guide.
Pre-ratification history examines the intentions and understandings of the framers and ratifiers of the constitution and amendments. These intentions and understandings may serve to give "strong evidence of meaning," though it does not determine it. This includes history in the colonial era, "including pre-ratification laws and practices." For example, constitutional provisions match the articles of confederation, or state constitutional provisions, in which case the history of how those were understood can inform what they meant at the time of the passage of the constitution. They can also show what things do not mean, such as in the ways in which the Constitution remedies the defects of the articles of confederation. American objections to abuses of British laws and rule can inform the interpretation of the Constitution and bill of rights. Hence, English deprivations of rights in some circumstances are not good evidence that the same is true under American constitutional provisions, as the American instances were often in response to them, to prevent precisely those abuses. (Kavanaugh footnotes that English law also can provide background for provisions, as American law is derived from it, but we shouldn't assume that it's imported wholesale.) He cites also the Equal Protection Clause of the 14th amendment should be understood to prevent racial discrimination, not to incorporate it.
Post-ratification history is also relevant. When the text is vague, and pre-ratification history is "elusive or inconclusive," it becomes important. There is little to turn to otherwise, if you would avoid policy. National and state governments interpreted and applied, and these often "reflected and reinforced common understandings of the Constitution's authorizations and limitations." They can "be probative" of meaning, and the collective understanding "provide good guidance." (He footnotes that there are still questions about how to apply this, such as how widespread the historical practice should be.) "the Framers themselves intended that post-ratifcation history would shed light on the meaning of vague constitutional text." And Kavanaugh (which, I suppose is here close to an application of the very principle under discussion) points to, in McCulloch v. Maryland, where they judge a national bank permissible, they judge it could "scarcely be considered as an open question," due to the recognition of the legislatures, and exposition of the constitution by "legislative acts." Kavanaugh also cites Scalia to support his position here, saying that "traditions"—which is the term Scalia often used for it—are "paramount." And post-ratification has often been employed. (For which he cites thirty examples.) He footnotes also that history is also used for unenumerated rights under the due process clause of privileges or immunities clause, but this is "180-degrees different." There, there is no text expressly protecting it, but they are protected because the Fourteenth Amendment "specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." (Citing Washington v. Glucksberg)
Third, Kavanaugh turns to precedent, which is "fundamental to day-to-day constitutaion decisionmaking" at both the Supreme court and every other court. The "judicial power" of article III incorporates stare decisis. "Courts must respect precedent," but it may also be appropriately overturned "on occasion." And so often there is reference to that precedent. But text and history, even in those situations matter: they determine how broadly or narrowly to read it, whether to extend, limit, or narrow a precedent, or, somewhat infrequently, when overruling a precedent, to consider how it fits with the Constitution's text and history. The text and history function as a "gravitational pull" on the interpretation of precedent. But precedent is still the first place to turn.
Kavanaugh turns to a discussion of policy: some would "uphold a law if it is a good idea; strike it down if it is not." This is not said explicitly, but is fundamentally what is happening in the balancing approach known as means-end scrutiny, or various other names. This is different from the historical methodology, and did not exist before the 1950s, and were adopted by accident, not from considered judgment. It has only been applied in some specific areas. He does not support overruling it, but does not consider it the ordinary interpretation, and opposes its expansion. (He doesn't mention it, but compare that Sotomayor had characterized it as the default.) He considers it "highly subjective," and they act more like legislators, than judges who "say what the law is." And it is ill-defined, with differences in whether there is a presumption of deference to the legislature, or to the right in question. (Though he does not mention this, recall that Jackson was concerned with applicability and consistency from lower courts.) And there is a danger of it being due to their own predilections. The historical approach is not perfect, but it is the best available.
And then he notes that interpretation is still developing for the second amendment, and that the cases in which it has—Heller, McDonald, Bruen, and now Rahimi use, in their approach, the same longstanding approach as to the interpretation of vague text in the constitution.
Upon reading this, I like Kavanaugh significantly more than I did before, because I understand him better.
Barrett writes on originalism. She points out that the Second Amendment involved a pre-existing right, and so pre-existing limits are part and parcel of it, defining the scope of "the right to bear arms" as originally understood, and agrees that looking to the historical tradition of firearm, as Bruen said, is the proper way to identify those limits. Barrett identifies the basic premise of originalism as that the meaning of the Constitution is fixed, and, in most circumstances, legally authoritative. Upon being ratified, the constitutional text is law, and "remains law until lawfully altered." The history that matters most is the history prior to its ratification, as that "illuminates the meaning of the enacted law." History postdating ratification "does not serve that function." It can still be useful, in that it can "reinforce our understanding of the Constitution's original meaning," "liquidate ambiguous constitutional provisions" ("liquidate" here meaning "make clear"), "provide persuasive evidence of original meaning", and, "if stare decisis applies, control the outcome." (Barrett here cites her concurrence in part from Vidal v. Elster the week prior—that was the trademark one, where she disagreed with the majority on the reasons why it should be allowed. Part III-B of her opinion there is the most relevant.) "Generally speaking, the use of postenactment history requires some justification other than originalism simpliciter." Barrett asserts that in her concurrence in Bruen formerly, she did wonder what time period was relevant for determining meaning, but emphasizes that she definitively does not think that "tradition, standing alone is dispositive." "Evidence of tradition unmoored from original meaning is not binding law." The dispositive sort of history plays two roles: showing how contemporaries understood the text, and "determining the scope of the pre-existing right that the people enshrined in our fundamental law. This is the way that the court uses history in Rahimi. (Barrett footnotes that original meaning controls, expectations about its application do not. Contemporary governments could be mistaken about their own rule, or might not have "fully and faithfully" implemented it. So it helps, but requires care. "Particular gun regulations—even if from the ratification era—do not themselves have the status of constitutional law.") She calls it "original contours" history: looking at history to find the contours.
Courts have wondered how general to be in their use of history. Are historical twins, or at least a cousin, needed? Or do they yield principles marking borders of the right? Barrett notes that "many courts, including the Fifth Circuit have understood Bruen to require the former, narrower approach." But she cites Bruen, where it says that "analogical reasoning" is not a "regulatory straightjacket." Challenged regulations do not need to be "an updated model of a historical counterpart" to be "consistent with historical limits." Requiring "overly specific analogues" "forces 21st-century regulations to follow late-18th-century policy choices, giving us 'a law trapped in amber,'" and assumes that they used all their power to regulate, a "use it or lose it" approach. Rather, "analogical reasoning" has regulations "reveal a principle, not a mold." That shouldn't be at a level that it "waters down he right." But it's an ordinary part of legal reasoning to draw principle from precedent. Sometimes there will be disagreement over how broad exactly. But in this case, there is the appropriate level of generality.
Now, finally, to Gorsuch. He too clarifies what exactly he sees it as necessary in the approach here, though he does not articulate as explicitly as Kavanaugh and Barrett that that is what he is doing, and articulates the philosophy more through the lens of the case at hand.
He opens by pointing out the sort of challenge: a facial one, where there must be "no set of circumstances" where it can be applied without violating the amendment. The Constitution, is undoubtedly relevant, in the second amendment. Which amendment's contours are dictated by "text and history." And so, the question in this case (as all agree that there's no textual reason why it would not apply) is about history: is it consistent with historic regulations. It does not need to be a "dead ringer" for a historical analogue, but it must show that "imposes a comparable burden on the right of armed self-defense to that imposed by a historically recognized regulation," and that its burden is "comparably justified." These are needed because the Second Amendment "codified a pre-existing right," which then carries the same scope as when it was adopted. He notes that they would have understood that there were risks, but also that it was "vital to the preservation of life and liberty." And the court does not have the "authority to question that judgment." "As judges charged with respecting the people's directions in the Constitution—directions that are 'trapped in amber'—[their] only lawful role is to apply them in the cases that come before [them]." (Note the different use of "trapped in amber" affirming that that is, actually, the case of the people's decisions in the Constitution, as opposed to Robert's saying the opposite in legal choices beyond the Constitution's.) Any changes to the Constitution are to be made by the American people. And so it is usual to cite history (citing Kavanaugh's concurrence), and this should be done with care (citing a footnote of Barrett's concurrence). He compares the right of a defendant to confront accusers, as exposited in Crawford v. Washington—there too, to justify an exception they must point to a close historical analogue. "We have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching policies, purposes or values to guide them in future cases. We have rejected those paths because the Constitution enshrines the people's choice to achieve certain policies, purposes, and values 'through very specific means': the right of confrontation as originally understood at the time of the founding." Courts may not extrapolate to values behind the right, and "enforce its guarantees only to the extent they serve (in the courts' views) those underlying values." That risks letting judges get rid of the right. Likewise here, they must be careful in historic comparisons.
Rahimi's challenge, Gorsuch judges, fails because surety laws and restrictions on "going armed" were understood from the start to all the government to "disarm an individual temporarily after a judicial determination that he likely would threaten or has threatened another with a weapon." And the statute does the same for the same reasons: disarms, only after notice and hearing, for physical safety, and onlyt for so long as the order is in effect. So, at least in some applications, it does not diminish any aspect of the Second Amendment right. He recognizes that Thomas disagrees whether it is analogous to practices outside the second amendment's scope, they agree that that is only proper question for the court. At least asking the question keeps justices where they in the station they ought to be, following the will of the people; not their own. Turning to the original meaning "offers surer footing" than any other method. "Come to this Court with arguments from text and history, and we are bound to reason through them as best we can…Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule." Adhere to the original meaning. Considering the lower courts before Bruen, with their "two-step test that quickly devolved into an interest-balancing inquiry." He cites some as saying that it let judges set policy, as a black box. In one circuit, the government won 50-0, undefeated. "Perhaps judges' jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution's promise." (I assume that is in part a shot at Jackson.)
Gorsuch also clarifies that the ruling is only that there exist circumstances where it is legitimate, because of the facial challenge: they do not decide whether people can be disarmed without a judicial finding of a credible threat. They do not decide whether permanent disarmament is permissible. They do not determine whether it may be used against someone who uses a firearm in self-defense. They do not approve laws allowing firearms to be denied to those deemed "not responsible" (noting Thomas' comment that not a single member adopts that theory.) Article 3 requires judgment only of cases; and those are not of this case.
Alright, that's all, finally. So, thoughts: First, a little on judicial philosophy. There appear to be several relevant questions:
Is Bruen's originalist history better than a means-end analysis?
Yes: Thomas, Gorsuch, Alito, Barrett, Kavanaugh, Roberts
No: Sotomayor, Kagan, Jackson
The originalist justices think that the job is, essentially, to follow faithfully what the Constitution set down, in its original meaning. The non-originalist justices think that a significant factor in interpretation of its meaning should be contemporary needs.
Should judges try to draw out principles? Or instead look purely for historical matches?
Yes: Barrett, Sotomayor, Kagan, Kavanaugh, Jackson, Roberts
No: Gorsuch, Thomas
Roberts manages to say little enough on this to get Gorsuch to sign on, on the one hand, but Thomas, Sotomayor, and Jackson all read his reference to principles as significant. I think some of this question might be to what extent one sees the right as existing simply in the set of regulations and lack of regulations applicable, as opposed to whether the regulations and lack of regulations are instead expressive of an underlying right. Thomas and Gorsuch seem to think something pretty close to the former, while most of the others think something close to the latter. I'm not certain of that, but it seems right.
Judging by the opinion in Vidal and elsewhere, Barrett is significantly less comfortable with history as conclusive evidence in itself for the constitutionality of a thing, though she is certainly in favor of history. But for her, history, with few exceptions, must be in order to exposit meaning; not proof in its own right. I wonder whether we're going to see a long string of dissents or concurrences in part after the style of Vidal.
She would disagree with at least some of what Kavanaugh writes concerning post-ratification history. Gorsuch's cites Kavanaugh's concurrence on the use of history, including post-ratification. But I don't know that that indicates that he signs on. This gave me a sense of Kavanaugh being a good bit more principled, rather than just pragmatic, than I ever had a sense of before.
Additionally (now that I'm looking there again), Kavanaugh's concurrence in Vidal, which Roberts joins, seems mildly to support looking for principles in things, instead of plain application of history.
Gorsuch's disagreement with Thomas here is fairly narrow. His vision of what an analogue is is slightly broader, but I don't see much else of a divergence. It's narrower than that found by many of the other justices.
Overall, this case gave me a much, much better sense of how the justices approach these things. Which philosophy do I like best? I think probably Barrett's, but I also get Gorsuch's concern that turning to principles leads to reduction of rights. I'm sad we didn't get to see Alito, and that Roberts was only one that he had to get people to agree to, instead of just purely whatever he thought. But I'll happily take a much better view of the way six of the justices approach issues.
More generally, it would not surprise me if we see more challenges of this statute. I'm pretty sure Gorsuch would approve of striking it down in other cases. It is less clear to me what the other justices would do. I am glad for the court's reputation that it went this way. People would not like the headline "Supreme Court rules domestic abusers entitled to violent weaponry" or some such.
Also, wow, all these took quite a while to read through and write up. Rahimi was worth my figuring it out in more detail, though.
Why not both? The way I see it, partisanship and truth-seeking are only somewhat contradictory. A pure truth-seeker is probably a mathematician or philosopher, and a pure partisan will lie, cheat, and steal to get what they want, but there are infinite combinations of the two qualities between those extremes.
The average reasonable person is aware of status games and plays them to at least some extent. Being a truth-seeker will earn you status in most circles. Being left-liberal will earn you status in most circles. When choosing what to cover there are tradeoffs between the two. I see the FAA scandal as such a good scoop that it was worth being somewhat critical of far-left extremists, and losing Progressive Points, because in this case the exchange rate for Truth Points is very good. The LoTT piece was pretty much the same but in reverse, losing some Truth Points in exchange for plenty of Progressive Points.
A rational person will pursue all such opportunities and gradually gain status in their circles in both respects. A partisan will perhaps ignore Truth Points entirely. I don't think Trace is a partisan, and I think he's chosen a reasonably Truth-slanted exchange rate between the two currencies, though of course I wish he were more on my side.
I strongly disagree with this. If the motivation for the FAA's actions was solely to obey seemingly contradictory laws, it would have followed the lead of all the other departments that are not in trouble. Or just done what it has always done, which didn't get it in trouble.
You're telling me that an organization which was not breaking any laws, in a time where its actions weren't being litigated anywhere, went way out of its way to secretly adopt new questionably legal policies, out of a desire to obey the law? Do you really think, if they thought their actions were legal, they would have hid them as they did? Surely if their motivation was to obey the law better, and they thought their policies were less likely to be litigated than the previous ones, they would trumpet the policy from every rooftop in order to ensure everyone knew about the new, safer, more legal policy.
No, that's just ridiculous. Equality of outcome laws had virtually nothing to do with these policies. The leaders wanted a racial spoils system, knew it probably wouldn't be legal, and implemented it anyways, out of pure ideological fervor.
This would hit a lot harder if there were prominent Republicans directly advocating for school/mall shootings, the way there are prominent Democrats directly advocating for reparations and other similar programs.
A better example would be abortion. Let's say X gets raped and tries to get an abortion but can't, because in her state abortion is banned even in cases of rape and incest. There are (a few, I think) prominent Republicans who advocate for these sorts of laws. In this case if Trace had said
then I would say the same thing--no! Obviously not! Plenty of people do want to defend that situation, but are smart enough not to do so in public, knowing it's outside of the current Overton window. And it's extremely partisan, because the people who made those laws are still in power and haven't apologized or otherwise expressed any regret at all, nor have any of their supporters condemned them for this. It's not a policy failure, it's a policy success, and the partisans whose policies worked as intended are still writing up new similar policies. (To bring the analogy full circle, Pete Buttigieg and co. are still appointing similar people to positions of power).
As far as I'm concerned Trace is better than any other journalist that I can think of, and deserves praise for that, but it's an amazingly low bar. I often visit the Fox News website rather than CNN's, not because I like it more or because it's more honest (CNN wins on both counts for me) but because its lies are far clumsier and more transparent. Trace takes this a step further, keeping every detail honest, but skillfully crafting the narrative such that if you're not paying attention you'll be led to the exact opposite of the correct conclusion, even with all of the relevant facts in hand. In the FAA case, one might conclude that the whole mess was just a bunch of innocent nonpartisan officials struggling to fulfill the law, rather than hyperpartisan officials fighting to secretly ignore the will of the people and enact their preferred agendas instead.
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