I try very hard to understand the views of those I disagree with. I really look to understand the values, reasoning and priorities of my opponents and rivals. I particularly try to think about whether what I might view as a compromise, they might view as offending them in exactly the same ways as the original.
Now, I admit that one big reason i do this is that I was taught from a very early age that the best way to win is to know the other side’s arguments better than they do; I was raised by an attorney. But nonetheless, I look for what they think and to look for inconsistencies. I look for holes. I look for bullshit at key points.
Now, one would have to be a bit of a legal nerd to know that, no, the Bill of Rights originally only provided protection from the federal government. Individual states were free to violate all of those rights, unless they themselves offered similar protections. (Off the top of my head, I believe that the US Bill of Rights was based on Virginia’s Bill of Rights.) And one would have to be a bit of a legal nerd to know that it was the Civil War Amendments that incorporated the federal Bill of Rights, making them apply to each state, as well.
For this reason and others, the Civil War and Reconstruction are often referred to as our nation’s Second Founding.
It is therefore quite suspect when anyone claims that the laws and norms of the late 19th century are insufficient historical grounding for making sense of the meaning of the Bill of Rights. If the question is what states may or must do, to go back 50-100 years further — when the Bill of Rights did not apply to the states — is willful blindness. It is intellectually insensible (that a typo, but it works for me!). It is an exercise if motivated reasoning that is — to use a legal term — risible.
I’ve never understood the idea that some of the Bill of Rights could be incorporated, but not others. I can follow sensible reasoning that says that the Second Amendment provides protection against state governments, and that the therefore state National Guards and the like cannot serve that “well regulated militia” function mentioned in the amendment. I can see a sensible line of reasoning that says the amendment protects an individual right to bear arms. But that individual right is not at all for individual protection. Rather, the amendment makes explicitly clear that this right is to bear arms for collective action and community protection. To suggest an individual right to individual protection is…entirely ungrounded in the text or tradition. It is, once again to use a legal term, risible.
That means laughable. It means so lacking in sense and reason to just be laughable. It should be laughed out the room, out of the courtroom.
New York State Rifle & Pistol Association Inc. v. Bruen is not the case that will bother me most from this Supreme Court term. I do not think that it is the case that will do the most damage to our society. It is not even the case that offends me the most, even though Kennedy and Dobbs has yet to be announced. But it might be the most intellectual dishonest case from this term. I do not simply mean misguided or confused. I mean flat out dishonest.