Quote of the day—Douglass Dowty

The judge struck down much of New York’s new gun law as unconstitutional. Suddaby painstakingly put to work Thomas’ historical test to decide the fitness of New York’s gun bans in dozens of locations.

For example, a state can ban guns from a school and a playground, but not a park. What about a zoo?

Guns may be banned on a local bus, but what about a Greyhound bus? Suddaby found the answer in the age before the invention of the car.

What about conference centers or movie theaters? The judge looked to 18th century meat markets and ballrooms.

Can New York require an applicant for a gun permit to provide his social media accounts? Suddaby invoked Alexander Hamilton’s death in a famed duel with Aaron Burr in 1804 to reason that you don’t have to provide your Facebook account.

What about airports? Or movie theaters? Again, he ruled, no historical tradition from the horse-and-buggy days provided constitutional grounds to ban guns there.

Douglass Dowty
December 1, 2022
Can you bring a gun to the zoo? On a bus? Syracuse judge eagerly rewrites NY firearms law
[I hope the issue of airports doesn’t drift into carrying on airplane too quickly. I think it runs the risk of backlash. Wait, maybe, five years then finish the job with right to carry on airplanes and in K-12 schools.

I think the anti-gun people are in some sort of shock and cannot believe what is happening. In support of this hypothesis, from the same article:

“The test that Bruen set up is unworkable in practice,” Charles said. “It doesn’t give clear guidelines to state officials or state legislatures. What do you need to do to pass constitutional laws? How do judges do this?”

He just doesn’t seem to get it. It is exceedingly clear. It is exactly as we have been saying for decades, “SHALL NOT BE INFRINGED!” Why is this so hard? Or is he just pretending to not understand?—Joe]


17 thoughts on “Quote of the day—Douglass Dowty

  1. The problem is that the Bruen decision didn’t say “shall not be infringed”. Instead, it STILL says “may be infringed if the state has a good enough excuse”. The only change is how the goodness of the excuse is to be tested.
    Bruen pretended to abolish the unconstitutional notion of “scrutiny” but it did not actually do so.

    “Laws are made for men of ordinary understanding and should therefore be construed by the ordinary rules of common sense; and their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure” — Thomas Jefferson
    That expresses the standard that is actually required. We may be getting a little closer, but we sure are not there yet.

      • I don’t know. The issue I’m pointing out is that the historic analysis approach seems to amount to “infringing is ok if you only infringe as was done in 1789”. Now it may be that this is the null set. If so, I’ll grant the notion that Thomas was being brilliant. But it invites all sorts of picking through obscure stuff and Bellesites style fake “scholarship” to justify restrictions ostensibly authorized by Bruen.

    • I’m thinking that’s part of Thomas’s brilliance in the decision. That it will only lead to “shall not be infringed.”
      Note the frustration in always having to go back and ask permission? The constant searching to get around it?
      “Shall not be infringed”, decision would have been met with; Thomas allows nukes to be open carried in kindergarten.
      Could it be the truth of “shall not be infringe”, is far to simple for the mob of papered moron, useful idiot communists?
      The exact type of people Thomas Jefferson was talking about in your quote.
      It’s funny they were causing mischief with the same crap-think 230 years ago!

  2. I like that, “How do we pass Constitutional laws?” — What he really is asking is, “How do we get away with Constitutional infringements without getting slapped down?”

    Mayb recast this from a different perspective and infringe a different civil right? “How do we make Blacks sit in the back of the bus and drink from different fountains without running afoul of Civil Rights laws?”

    • Yep, that’s exactly what they mean when they ask, “How do we pass Constitutional laws?”

      Analogies do a decent job of illustrating the point. The “guns/Bibles” comparison is ages old. Take the Oregon ballot measure 114, for example: among other things, it imposes a permit-to-purchase any firearm and a law-enforcement-provided “gun safety” class before you can even apply for a permit-to-purchase.

      Now imagine you had to take a police-provided reading class and apply for a permit-to-purchase before you could buy a Bible, Torah, Koran, or essay-turned-book on the FSM. (And analogous to “high-capacity” magazine bans, you can only own 10 “religious” texts; #11 is illegal, permit or no permit.) How long do you suppose such a law would be allowed to stand?

      Or the 4th Amendment: Suppose you had to take a police-provided class and apply for a permit before you could be safe from unreasonable searches and seizures, and lacking such a permit you could be stopped and frisked on the street at a whim and police wouldn’t need a warrant to pop into your home to search for contraband at any hour. (And it only covers the first 10 “questionable” items discovered; #11 gets you arrested, permit notwithstanding.) How long would this law be allowed?

      Should we need required training, background checks, and permits to avoid cruel and unusual punishments (8th Amendment)? Should we need to jump through hoops and prove we’re not criminals in order to avoid having to implicate ourselves as criminals (5th Amendment)?

      The training and permit-to-purchase requirements are no more Constitutionally valid than any of these ridiculous examples.

      “How do we pass Constitutional laws limiting protected rights?”

      The only correct answer: You don’t, because you can’t.

    • Defens, that’s a great point and it was made some years ago by Neil Smith, when he pointed out (I think in his novel “Hope” co-authored with Aaron Zelman of JPFO fame) that politicians think of the Constitution as a set of annoying rules to be worked around, rather than as the supreme law of the land to be obeyed at all times.

    • “How do we make Blacks sit in the back of the bus and drink from different fountains without running afoul of Civil Rights laws?”
      Thats easy. Make them feel special. Tell them the back of the bus is the best place to ride. It’s easier to get on and off the bus from there. And that white people have diseases. So, blacks need their own drinking fountains.
      That’s not a ghetto. It’s just a black only artistic expression zone.
      In theory it sounds insane. In reality it appears to be working as designed?

  3. It’s not hard to work out how to write a constitutional law regarding guns.

    First, you don’t write a law about the guns themselves.

    The Second Amendment recognizes and protects from government control a right of capital-T THE capital-P PEOPLE. The same “The People” that established the Constitution, and all authority below it. The same “The People” that have a right to petition the government for redress of grievances. Those are rights that belong to The People, and every individual member of The People.

    The government doesn’t get to touch The People’s right to keep and bear arms, and all things ancillary to doing both of those things. No; not yours; hands off.

    The government can, presumably, regulate the arms used by itself. If it wants to outlaw the use of tasers, great… no more cops with tasers. Guess they’ll go to guns when using fists poses too much risk for the cop.

    The government can regulate what arms may be possessed by individuals or groups of individuals that aren’t of The People. Non-citizens. Visiting (or invading) aliens of all kinds. And those who refuse to recognize the lawful authority of the US Constitution and the reasonable steps taken by the government to implement it: felons, as proven by due process of law, by objective criteria and the unanimous agreement of a jury of The People. I certainly believe in a natural right of humanity to defend oneself and have the tools to do it. I just don’t think that the US Constitution and the government established by it has the authority to protect that right of, say, Canadians.

    Otherwise, if it’s an arm that is bearable, there is no power (legislative, judicial or executive) to prevent a member of The People from acquiring it, keeping it or bearing it.

  4. Re-reading some of that screed, the author seems to complain that the judge made historical analogies to decide on modern questions. I’m willing to grant that some are … interesting (duels as analogous to social media, for example) … but those complaints basically boil down to the same old argument we’ve all heard: “The Second Amendment was written for single-shot muskets. The Founders could never have envisioned military-grade ‘assault weapons’ in civilian hands and would never have protected them!”

    Sorry, but no. The Founders knew that technology would develop and wrote the Constitution and Bill of Rights to stand the test of time.

    And it’s ironic, once again, to read that the Second Amendment only protects historical arms — an opinion which someone exercised their First-Amendment-protected right to publish … on the Internet, using a computer or smartphone.

    • Not to mention that in the time of the Founders, private ownership of cannons was not unusual. And, for that matter, explicitly covered in the Constitution. After all, it authorizes Congress to grant Letters of Marque, which are licenses to operate private warships, which obviously have cannons in them.

  5. “The Founders could never have envisioned military-grade ‘assault weapons’ in civilian hands and would never have protected them!””

    The Continental Congress had authorized the purchase of a musket that held 8(?) shots, that fired them with a slight delay between shots. Once triggered, it would not be capable of stopping until empty. (A mag dump/chain-fire special!)
    It is thought that technical difficulties kept the 5000 item order from going into production.

    • In the time of the Founding, cannon — both land and naval — were primarily owned by private citizens. People were also actively designing and building repeating muskets and early rifles. (Many of those ended up being one-off prototypes lost to history, but others have survived, and a few became the precursors to models still in production today.)

      And the Founders knew about all that. Some of them were successful inventors in their own rights! The notion that they couldn’t have envisioned advancements in man-portable armaments — and that therefore modern weapons aren’t protected under the Second Amendment — is ludicrous on its face.

      It makes as much sense as saying that the Founders couldn’t have envisioned electronic telecommunication devices connected to a globe-spanning information network that puts the world’s cumulative knowledge at anyone’s fingertips, and therefore only hand-written letters, manually-cranked printing-press newspapers and flyers, and soap-box speeches — on literal soap-boxes — are protected under the First Amendment.

      Of course, everyone recognizes that modern communications are protected, but we’re to believe that somehow modern arms shouldn’t be? Riiiight.

      • Just a fun tidbit. Joe the Joke, Biden said you weren’t allowed to own cannons back at the writing of the Constitution.
        In fact black powder cannons are still to this day un-regulated. One can buy, sale, make, and trade them, any size or configuration, all one wants. And always have been able to.
        Worried about a communist protest showing up at your home? Load up some “grape shot”, I hear it’s a real crowd pleaser!

  6. The Bruen decision is reversing decades of anti 2A unconstitutional laws. Sadly this will be only a temporary reprieve. When you rely on the courts to sustain your Rights such acts are at best temporary. Eventually the left, having seized power and then creating a voting system that THEY OWN will have the ability to appoint justices who WILL reverse Bruen, Heller and any other ruling the left doesn’t like.
    It’s not an IF…..it’s a WHEN. It WILL HAPPEN.

  7. Anywhere a cop can carry their firearm, any citizen should be able to do so as well.

    The term “gun free zone” should not exist.

    • The accurate and correct designation for such places is “defenseless victim zones”.

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