Apparently Trump Judge Thapar on the 6th has written a concurrence saying we should import Bruen's very coherent and logical "history and tradition" into FIRST Amendment law as well. I'm still amazed at how few actual historians we have in law schools. Who is teaching these judges history?!
The press back then makes RT seem like a reliable source, so, maybe?
Well underway, as we saw in last term's Elster case. They're not just bad at history, though they are that: all the work applying "history and tradition" to today's disputes is done by analogies, and those are easily manipulable. Constitutional law, like history, is written by the victors.
Historical analysis is an actual SKILL. You don't just wake up one morning and say "you know what, I'm going to do a history today!" It takes time. And TRAINING. We've been in this originalist moment for DECADES now. Yet the structural of the legal academy has barely budged in response.
Wait As in "uphold the law unless there's a documented tradition of striking stuff like this down" or as in "strike it down unless there's a documented tradition of this exact kind of law"? (They already said 1A *exceptions* need a historical pedigree in U.S. v. Stevens)
Apparently not anyone who has read the history of the wildly varying thoughts on almost everything that the founders had.
I think we’re looking at this all wrong. Weaponize Bruen. There is all sorts of horseshit that has no historical basis like liability immunity for gun manufacturers (PLCAA) or protection from individual accountability under FOPA.
man, these dudes don't care at all about actual history
Leonard Leo
This is just a placeholder. First they used "text" to get what they wanted, they moved to "original intent" when text wasn't enough, now they use "history and tradition" because they want to move further to the ultimate destination of right-wing theocratic dystopia. It's all vibes.
When I was in law school it seemed like everyone was pretty honest that it wasn't seriously about the history and more of a rhetorical strategy to get their preferred positions. It's not like there's a single founding era case or speech advocating it.