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SCOTUS is not motivated by logic and the law [1]
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Date: 2022-12-17
The decisions of the Supreme Court are mysterious. Those decisions defy simple logic and I’m hoping that more knowledgeable people than I can talk me off the ledge. I’m going to review two issues where the conservative power on SCOTUS has reversed years of progress:
The 2 nd Amendment and,
Amendment and, Affirmative action
The 2nd Amendment. Antonin Scalia was known as a textualist, which emphasizes how the terms in the Constitution would be understood by people at the time they were ratified. Scalia’s textualist interpretation of the 2nd Amendment meant that we can only understand it in terms of the popular meaning of the text in 1787, which was that the federal government could not infringe on the right of the people to keep and bear arms.
Let’s step around the question of whether this refers to the INDIVIDUAL’s right or a COLLECTIVE right. That’s a rabbit hole we can discuss at another time. Rather, I’m looking for help on the question of meaning of the types of arms that are allowed – in the textualist view.
The literal meaning of “keep and bear” arms would seem to imply something that a normal person could carry. So M1 tanks would be out, right? We can feel comfortable that it is constitutional for the government to prohibit individuals from keeping and bearing M1 tanks.
What about Javelin missiles?
Javelin missiles can be carried by one person. I would infer from a textualist view of the Constitution that it is UNconstitutional for the government to prohibit individuals from keeping and bearing Javelin missiles except for one thing…
The well-worn argument against the textualist interpretation of the 2nd Amendment: There is no question that the 1787 definition of a bear-able arm meant some kind of a musket. Those men in the hot hall in 1787 Philadelphia would no more have been able to conceive of an AR-15 than of nuclear fusion. So, a textualist interpretation of the 2nd Amendment must conclude that the Constitution allows the government to regulate anything but muskets.
In other words, muskets are OK, but AR-15s and Javelin missiles are not.
And yet, here we are. AR-15s are apparently ok. I’m confused. But wait, there’s more.
Affirmative action. SCOTUS tells us that race based plus-factors in university admissions is against the Constitution. Why? Well, let’s assume that a certain group, X, has been discriminated against and a university decides to mitigate some of that discrimination by giving them a plus-factor in admission decisions.
SCOTUS then said, “No, because by doing that you are discriminating against group y.”
I see two egregious logical errors in this reasoning:
If group Y has been getting a free ride for the past 400 years, and then we tell them, “I’m sorry. You actually have to pay for a ticket on this train now,” is that discrimination against group Y?? There is an underlying assumption in SCOTUS’s logic that is clearly wrong. We are not playing a zero-sum game. By reducing discrimination, we make the country better for everybody, including group Y!.
The logic of these arguments is so simple and clear that if SCOTUS doesn’t see it, then they must be motivated by something other than logic. What am I missing here?
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