If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
> The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.
This, of course, doesn't include machine guns.
The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.
The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
Given that this isn't an issue in any other modern democracy, I'd say "bug."
https://theonion.com/no-way-to-prevent-this-says-only-nation...
To a point. It seems to have ground to a halt.
> The USA has had an uninterrupted system of government since 1789. How many other major countries can say the same?
Quite a few of them can say "we took those good ideas and built on them".
Let's see how those other countries are doing 100 years from now.
The US in 2026 operates fundamentally differently than in 1910, and both are unrecognizable to 1801.
The document was written when there were 13 states, and at best, appetite for a mere handful of others to join. For example, the degree of the weaponization of state-carving in the mid-19th century wasn’t in the cards. A 26 member upper legislature operates substantially different than one comprised of 100 members.
A high majority requirement seems reasonable as you have less and less members. It prevents one person from coming in and convincing two other people to completely change how things operate.
But the optimal majority requirement which balances rigidness and flexibility certainly trends downward as an organization grows. By how much? I'd like to know.
Sort of. We had a civil war. We had a second founding. Then we had violent overthrowing of the reconstruction governments in the south. It has been less than 100 years since the US has provided the franchise to everybody, and even then this is a bit questionable.
Instead of constitutional amendments we get aggressive reinterpretation of the text by politically motivated efforts to change the courts. Despite no change to the constitution itself we've created criminal immunity for presidents and overturned interpretations regarding separation of powers than have been in place for a century.
> no practical way to ever update the Bill of Rights in the 21st century
This reads the same way as people who say things like “we just have to accept that Congress is broken and can’t pass new legislation.” Like hell we do!
Redcoats in your home, comparing notes with all the other redcoats who live in your buddies house and hassle your bartender, watch the comings and goings of everyone else around town, etc, etc.
I think the fix is to require more political parties to be involved, so a 51% majority of a single party can't remove federal laws whenever they have a majority. Then you wouldn't need an amendment to solve controversial problems.
Of course there is, it is just being done - the constitution is being rewritten out right now by supreme court. All you need is a majority on a 9 person commission.
> In Second Amendment cases, this Court applies the Amendment to semi-automatic handguns even though those did not exist in 1791 or 1868.
"Shall not be infringed" apparently applies to unimaginably better weaponry, but they couldn't have anticipated immigrants being pregnant.
“Oh, those aren’t arms. They’re, uh, destructive devices!”
The NRA has a lot of overlap, but Reagan was never particularly pro-gun - he was literally a California Actor, and it was under him that most federal gun laws were passed. (1984 GCA being huge)
In many ways, he was just really good at pretending to be/pushing folks on the rights buttons, while being a smokescreen for all the other laws that people needed to pass. In that way, a lot like Trump is right now.
Notably, Reagan also had dimentia/Alzheimer’s through a large portion of his terms, not that it is related to our current situation at all…
If you can afford either of those you have enough invested in the system that you probably won't use it lightly and if you don't you should and that's kind of the system's problem.
That's why Elon Musk is both the richest man in modern history and also the most upright, caring, and self-restrained one too!
Protection
Participation in military / national defense
Resistance of tyrannical government
Hunting
Depending upon whether or not you think the Constitution is a living document, a modern reading of 2A could reasonably include things like explosives, drones, radar, etc., but maybe exclude things like nukes, fighter jets, biochemical weapons, other purely offensive things. I'm very pro-gun regulation, but I think this would be a fine reading as long as we're doing the same thing across the Constitution, i.e. substantive due process.
But while conservatives love modern readings of 2A, they deny modern readings of anything else. So they have to find some way to fit their desired outcomes into originals/textualism, leading to absurd dilemmas like "either the founders meant muskets or they meant nukes", or tortured standards like scanning all firearm or self-defense laws in effect around the late 18th century to discern intent, which predictably do not emerge from consistent foundational principles because their authorship is scattered across space and time and thus really are no help... unless of course you cherry pick shamelessly.
That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.
And then there's Puckle's gun.
Notably, the Gatling gun is still legal almost everywhere, including California (lulz!).
If that is legal, what is the actual point of 99% if the rest of the bans, etc?
> The U.S. has the 28th-highest rate of deaths from gun violence in the world: 4.31 deaths per 100,000 people in 2021. That was more than seven times as high as the rate in Canada, which had 0.57 deaths per 100,000 people — and about 340 times higher than in the United Kingdom, which had 0.013 deaths per 100,000.
https://everytownresearch.org/graph/the-u-s-gun-homicide-rat...
> The US gun homicide rate is 26 times that of other high-income countries.
https://pubmed.ncbi.nlm.nih.gov/26551975/
> US homicide rates were 7.0 times higher than in other high-income countries, driven by a gun homicide rate that was 25.2 times higher. For 15- to 24-year-olds, the gun homicide rate in the United States was 49.0 times higher. Firearm-related suicide rates were 8.0 times higher in the United States, but the overall suicide rates were average. Unintentional firearm deaths were 6.2 times higher in the United States. The overall firearm death rate in the United States from all causes was 10.0 times higher. Ninety percent of women, 91% of children aged 0 to 14 years, 92% of youth aged 15 to 24 years, and 82% of all people killed by firearms were from the United States.
We have more firearm homicides per capita than other prosperous countries have total homicides via all methods.
How much do you think of this disparity is due to Gatling guns?
What other epidemic of a specific type of gun crime is there, exactly? (And no, entire categories like ‘hand gun’ don’t count)
How convenient for your argument!
Why not? You aren't concerned that our murder rate is seven times that of other OECD nations, and 25x when limited to firearms?
And if you can’t understand or articulate what is going on, then good luck doing anything about it?
I provided a concise term that actually has a concrete meaning. That is the thread we are in.
Care to join? Or do you want to scream incoherently into the void more?
Yes, that's what this thread's about. You argued Gatling guns being legal makes gun control overall silly; someone else noted that the theoetical regulatory gap exists because in practice no one uses Gatling guns in crimes.
> And if you can’t understand or articulate what is going on, then good luck doing anything about it?
I think 25x the gun homicide rate effectively articulates what's going on. Do you disagree?
Either by make/model, or by individual items. Statistically, by item, it’s likely .001% territory.
So again, care to make your screaming more coherent? Right now you seem to be doing the equivalent of screaming about ‘cars kill people’. When, okay, there are a lot of car accidents. Plenty of people murdering each other with cars too!
But how does that add anything to the conversation?
and I gave an example of a historically high power piece of military equipment that would still strike fear in anyone on the other side of it - that is also completely legal to own in even a high ‘ban’ state like California - and apparently also not ‘causing a lot of crime’. there are new manufacture ones out there. they are pretty cool! [https://tippmannordnance.com/gatling-guns/].
so what is the actual deal, eh?
The textualists turn out not to be so textualist when they feel like it.
It makes sense to interpret some cases in historical context and others not, because some cases are not as much affected by the difference in context.
That's not being machiavellian - that's avoiding an one size fits all approach.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
By narrowly interpreting the text exactly as a WL18CWM would have interpreted it (e.g. black people are not people), they’re not leaving room for interpretations of the constitution that would provide equal rights to people who are not WL18CWM:
- The constitution grants rights
- The authors have a bias (WL18CWM)
- Originalists essentially ignore this bias, leading to fewer or restricted rights to people who are less similar to WL18CWMAn entirely fair law might not be possible, at least as long as people with specific class/race/gender interests overwhelmingly influence it. But a somewhat fair law or a law fairer than another, is.
And, at least as I understand it, the scholar doesn't say that nobody is ever "capable of reasoning outside of their class/race/gender/etc position" in general. Just that those making the constitution weren't that good at it.
They were exceedingly good at it. In my country’s constitution we have all sorts of things from the american constitution, like due process, because we literally have no indigenous words for these concepts.
So? Doesn't change the fact that they weren't very good with not letting class/race/gender/etc position influence their policy making.
And that's the claim we're discussing whether they've been good at, not whether they came up with some good new concepts like "due process" and "the right to free speech".
They had "due process" but they also had slavery.
They had "equal rights" and voting but not for poor not land-owning plebes or women.
They had "free speech" but also McCarthyism.
Their constitution didn't prevent laws describing how e.g. blacks can't sleep in the same hotels or go to the same schools as whites to be applied and be considered compatible with it.
And didn't prevent a globally huge per capita prison system, primarily targeting blacks, even today.
You are disenfranchised when your judicial branch interprets law in a way that disproportionately benefits only the people who are most similar to the authors.
Also, how wealthy are you? Why did you bring up your race instead of how much land you own? Why pull the culture war into this? Certain interpretations of the constitution disproportionately benefit people who own a lot of land.
Did you edit your comment?
If you were a black man would you have been disenfranchised when those laws were in force?
I'd say yes.
The fact that it was/is worse elsewhere, e.g. in some places in Asia, doesn't make the critique (of how white Constitutional/law makers historically disenfranchised certain demographics in the US) invalid.
In a counter-factual world where the founders hadn’t exported their ideas all over the world, I’d be disenfranchised in my own home country! Because everyone was disenfranchised. Everyone was a serf.
And what we're debating in this subthread, is whether "a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person".
The fact that the constitution inspired changes "all over the world" doesn't change that fact.
Regarding slavery, which is something somewhat major you'd agree, the Constitution didn't even inspire enough within the US itself, since it took until the Civil War (and, more importantly, it took a civil war) to get it abolished.
>Because everyone was disenfranchised. Everyone was a serf.
You try to paint it as some unique development, but things like Magna Carta and habeas corpus (and even a bill of rights) already existed, as you're aware, the Swiss cantons had democratic (even direct democratic) institutions and the landsgemeinde system, and other such developments.
Slavery too had already disappeared in practice in western europe, but also many other places, centuries earlier. Which is likely why you had to change it to "serfdom", but even that wasn't applicable. The British, the Dutch, and other peoples had also quit (or effectively quit) serfdom as well, before the Constitution. Why, even russia (famous for its miserable serfdom system) had abolished serfdom right about before the Civil War!
"Franchise" is the right to vote. Disenfranchisement is legal prohibition against voting. Social behaviors have nothing to do with it.
"Jus soli" is a legal term in English, defined by the chief authority (Black's Dictionary of Legal Terms) as rights achieved by one's place of birth (instead of by one's parentage).
Diplomats are only partially subject to civil law as you have claimed. There is also no practical leverage available to the courts if their funds are not stored in places subject to US jurisdiction. So, a minor backing for your claim, but one that is not in practice applied, nor considered relevant by precedent in regards to the XIVth.
I'm sorry you're being attacked so vociferously in this thread, as you are arguing in good faith with the knowledge you have, but your knowledge base is insufficient for the confidence you show.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
https://pacificlegal.org/originalism-vs-textualism-vs-living...