\u201c\u2018Habitual drunkard,\u2019 the American Temperance Society back in the day said eight shots of whiskey a day only made you an \u2018occasional drunkard,’\u201d Gorsuch explained. \u201cWe have to remember the founding era, if you want to invoke the founding era, to be a \u2018habitual drunkard,\u2019 you had to do double that, okay?\u201d<\/p>\n
The Constitutional Convention was basically a frat party, okay? You can\u2019t hammer out the details of a new nation without being absolutely hammered!<\/p>\n
The gallery watching United States v. Hemani<\/em> \u2014 the case of a Texas man who uses marijuana every other day while keeping an otherwise legally purchased handgun in his home \u2014 giggled at Gorsuch\u2019s remarks, but the justice barreled forward with his humorless brand of originalism:<\/p>\n John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn\u2019t much a user of alcohol, he only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?<\/p>\n<\/blockquote>\n All that and<\/em> they built a new nation conceived in liberty? Talk about putting the fun in functional alcoholism. And they weren\u2019t even the hardest of the hardcore Founders:<\/p>\n USA! USA! USA!<\/p>\n Justice Barrett questioned whether someone who takes Ambien or Xanax without a prescription becomes \u201cdangerous\u201d under this framework, noting that it\u2019s the lawfulness of the use, not the drug itself, that triggers the statute. Justice Kagan went on a tangent about Ayahuasca \u2014 prompting Barrett to ask if it was a real drug. (It is.) Justice Thomas asked about anabolic steroids.<\/p>\n Which are all very valid questions about the troubling vagueness of this statute that probably should be struck down. None of which require asking if Ali Hemani could keep up with John Adams at bottomless cider brunch.<\/p>\n But this is the intellectual dead end wrought by the Court\u2019s 2022 Bruen<\/em> framework<\/a>. Requiring the country\u2019s gun regulations to match the \u201cNation\u2019s historical tradition,\u201d based on quasi-historical vibes might produce an occasional insight, but it also traps the Constitution in the sort of sophistic \u201chow much pot would you have to smoke to lose a drinking contest with James Madison?\u201d banter better suited to an actual barstool conversation. <\/p>\n This dogmatic adherence to historical analogy as the only<\/em> acceptable framework for constitutional analysis spirals into absurdity.<\/p>\n When early American legislatures restricted the rights of habitual drunkards, they weren\u2019t setting a blood alcohol threshold for future generations to reverse-engineer. They were articulating the principle that the government can act to protect public safety when substance use renders someone incapable of exercising responsible judgment. It translates perfectly well to the modern era without asking if the kids these days are too soft to hang at a John Hancock rager<\/a>.<\/p>\n Comparative tolerance studies across centuries shouldn\u2019t be the basis for interpreting fundamental rights. Bruen<\/em> created the mess. Rahimi<\/em> \u2014 the domestic abuser case \u2014 was the first attempt to clean it up without admitting it was a mess<\/a>. Hemani<\/em> is the next installment.<\/p>\n The post Justice Gorsuch: Originalism Means Remembering That The Founders Knew How To F-ing Party<\/a> appeared first on Above the Law<\/a>.<\/p>\n Yesterday, the federal government defended the constitutionality of a statute \u2014 18 U.S.C. \u00a7 922(g)(3) \u2014 barring \u201cunlawful users\u201d of controlled substances from possessing firearms by citing local early American laws restricting the rights of \u201chabitual drunkards.\u201d You might ask if laws aimed at \u201cdrunkards\u201d necessarily justify laws against mere users, whether such a distinction provides any predictable enforcement brightline, or, better yet, why we should even care about cherry-picked 18th century town ordinances. <\/p>\n Justice Neil Gorsuch, by contrast, reached directly for the Originalism hard stuff to point out that\u2026 the Founders went HARD<\/a>.<\/p>\n \u201c\u2018Habitual drunkard,\u2019 the American Temperance Society back in the day said eight shots of whiskey a day only made you an \u2018occasional drunkard,’\u201d Gorsuch explained. \u201cWe have to remember the founding era, if you want to invoke the founding era, to be a \u2018habitual drunkard,\u2019 you had to do double that, okay?\u201d<\/p>\n The Constitutional Convention was basically a frat party, okay? You can\u2019t hammer out the details of a new nation without being absolutely hammered!<\/p>\n The gallery watching United States v. Hemani<\/em> \u2014 the case of a Texas man who uses marijuana every other day while keeping an otherwise legally purchased handgun in his home \u2014 giggled at Gorsuch\u2019s remarks, but the justice barreled forward with his humorless brand of originalism:<\/p>\n John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn\u2019t much a user of alcohol, he only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?<\/p>\n<\/blockquote>\n All that and<\/em> they built a new nation conceived in liberty? Talk about putting the fun in functional alcoholism. And they weren\u2019t even the hardest of the hardcore Founders:<\/p>\n USA! USA! USA!<\/p>\n Justice Barrett questioned whether someone who takes Ambien or Xanax without a prescription becomes \u201cdangerous\u201d under this framework, noting that it\u2019s the lawfulness of the use, not the drug itself, that triggers the statute. Justice Kagan went on a tangent about Ayahuasca \u2014 prompting Barrett to ask if it was a real drug. (It is.) Justice Thomas asked about anabolic steroids.<\/p>\n Which are all very valid questions about the troubling vagueness of this statute that probably should be struck down. None of which require asking if Ali Hemani could keep up with John Adams at bottomless cider brunch.<\/p>\n But this is the intellectual dead end wrought by the Court\u2019s 2022 Bruen<\/em> framework<\/a>. Requiring the country\u2019s gun regulations to match the \u201cNation\u2019s historical tradition,\u201d based on quasi-historical vibes might produce an occasional insight, but it also traps the Constitution in the sort of sophistic \u201chow much pot would you have to smoke to lose a drinking contest with James Madison?\u201d banter better suited to an actual barstool conversation. <\/p>\n This dogmatic adherence to historical analogy as the only<\/em> acceptable framework for constitutional analysis spirals into absurdity.<\/p>\n When early American legislatures restricted the rights of habitual drunkards, they weren\u2019t setting a blood alcohol threshold for future generations to reverse-engineer. They were articulating the principle that the government can act to protect public safety when substance use renders someone incapable of exercising responsible judgment. It translates perfectly well to the modern era without asking if the kids these days are too soft to hang at a John Hancock rager<\/a>.<\/p>\n Comparative tolerance studies across centuries shouldn\u2019t be the basis for interpreting fundamental rights. Bruen<\/em> created the mess. Rahimi<\/em> \u2014 the domestic abuser case \u2014 was the first attempt to clean it up without admitting it was a mess<\/a>. Hemani<\/em> is the next installment.<\/p>\n Yesterday, the federal government defended the constitutionality of a statute \u2014 18 U.S.C. \u00a7 922(g)(3) \u2014 barring \u201cunlawful users\u201d of controlled substances from possessing firearms by citing local early American laws restricting the rights of \u201chabitual drunkards.\u201d You might ask if laws aimed at \u201cdrunkards\u201d necessarily justify laws against mere users, whether such a distinction […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-145327","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/145327","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=145327"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/145327\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=145327"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=145327"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=145327"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n![\"\"](\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2020\/11\/GettyImages-1007971016-300x200.jpg?resize=300%2C200&ssl=1\" "\\"\\"")
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\nJoe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"