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anon_6hv78pr714xta
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There's nothing wrong with citing to dissents. He's not saying they are binding authority.
Alito is arguing this decision won't be binding precedent in those other areas. That's a different matter. Can people later argue that he's wrong? Sure. Will other judges follow that reasoning when the author of the opinion (and any others who sign onto it) says not to? Doubtful. Not certain, but doubtful.
There is a lot to discuss here. I agree with 90% of what you write. I’d just say I think you misstate the issue for an originalist by saying they just want to follow what slave owning white men thought in 1800. That’s not quite right.I don't mind any method including originalism as part of a stew of decision making. To take it modern politics, neither conservatives or liberals are always right/always yield best results. I am a Methodist, I will never say Methodists are always right on God's Word. I love the work Einstein did, Relativity has holes. I like man-to-man defense but there are times zone makes sense. Few times in life is there a single answer for all occasions.
Garry Wills is a historian who has an excellent article on the Gettysburg Address. Excerpted from it:
Many events have changed America and it's thinking. None more than the Civil War but it is hardly alone. I find it absurd to think the only solution to resolving disputes is, "What did White property owners think in 1887". We fought that horrible war because too many insisted on exactly that thinking. America was done with slavery but not done enough to have a hope of amending the Constitution because of the math that rewards small states over large.
- [Lincoln] not only presented the Declaration of Independence in a new light, as a matter of founding law, but put its central proposition, equality, in a newly favored position as a principle of the Constitution … What had been mere theory in the writings of James Wilson, Joseph Story, and Daniel Webster—that the nation preceded the states, in time and importance—now became a lived reality of the American tradition. The results of this were seen almost at once. Up to the Civil War “the United States” was invariably a plural noun: “The United States are a free country.” After Gettysburg it became a singular: “The United States is a free country.” This was a result of the whole mode of thinking that Lincoln expressed in his acts as well as his words, making union not a mystical hope but a constitutional reality. When, at the end of the address, he referred to government “of the people, by the people, for the people,” he was not, like Theodore Parker, just praising popular government as a Transcendentalist’s ideal. Rather, like Webster, he was saying that America was a people accepting as its great assignment what was addressed in the Declaration. This people was “conceived” in 1776, was “brought forth” as an entity whose birth was datable (“four score and seven years” before) and placeable (“on this continent”), and was capable of receiving a “new birth of freedom
Any thinking of "what does this singular world view tell me to do" is inherently doomed to fail just as marrying cousins is doomed compared to diverse genetics.
But to stick to guns, several states and areas had fun control laws when the document was ratified. It was illegal in Boston to store a gun loaded. In most other states all men had to register as part of the militia and report, with weapon, for call out drills. Isn't that firearm registration? Some states did not allow open carry. Kentucky and Louisiana banned concealed carry in 1813, a lot of founding fathers were still alive. How should that fit into a concealed carry debate?
Plus we had no real public opinion polls. How do we know what a majority really felt? Most Americans were barely literate and left no written record, do they not matter at all? Should we consider what slaves and Native Americans thought?
Re one way to do things, I tend to agree but probably not for the same reasons. I think each form of interpretation actually blends into the others. But on the issue of not thinking there is just one right way, I think you’re mixing and matching disciplines in your examples. To make the best case for an originalist, I think they’d say that legal thinking is it’s own discipline that has its own best, preferred method and they’d try to analogize to the scientific method for answering science questions: would you allow for other methods in that discipline? (Alchemy, intuitionism, religious thinking, etc?)
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