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In news conferences throughout the week, Gov. Ron DeSantis has mostly suppressed political rhetoric in the fallout of Hurricane Ians devastating impact.

But on Friday, his tone shifted, suddenly reaffirming that the state will be upholding law and order even as flooding occurs, bridges are down, and one county does not have reliable access to water.

After a list of recovery efforts such as the 1.7 million power outages across the state DeSantis said that another one of his main concerns are looters.

The other thing that were concerned about, particularly in those areas that were really hard hit, is you know, we wanna make sure were maintaining law and order, DeSantis said. Dont even think about looting. Dont even think about taking advantage of people in this vulnerable situation. And so local law enforcement is involved in monitoring that.

He did not specify if any so-called looting had already occurred among these homes but he did paint a hypothetical:

You can have people you know bringing boats into some of these islands and trying to ransack peoples homes, the governor said.

I can tell you, in the state of Florida, you never know what may be lurking behind somebodys home, DeSantis continued, and I would not wanna chance that if I were you, given that were a Second Amendment state.

DeSantis discussed looting at least twice on Friday at news conferences, once near Fort Myers and then St. Augustine.

Meanwhile, the Florida Department of Health issued several boiled water notices, for Collier, Hillsborough, Pasco, Orange and other counties.

Power outages continue, and some areas will need days or even weeks to recover and get power back on. Earlier Friday, the figure on power outages was 1.9 million, so there has been some improvement in restoration.

FEMA also is distributing millions of meals and liters of water in affected areas.

As to deaths, there were no additional updates.

Read the original:
'Don't even think about looting,' DeSantis warns about Ian-hit areas. 'We're a 2nd Amendment state' - Florida Phoenix

Alex Jones has, experts say, used the U.S. Constitution as both a shield and a sword.

When Jones first started talking about the Sandy Hook shooting, the day of the massacre itself, he said it was a manufactured crisis intended to create enough sympathy and outrage to enact gun control legislation.

Now that he faces the second of three civil trials to decide damages after courts in both Connecticut and Texas handed down a default judgment in favor of Sandy Hook families, he has claimed that his First Amendment rights to free speech have been limited by a judge hes called a tyrant.

During the current trial, Chris Mattei, attorney for the Sandy Hook families, played a video of Jones saying Sandy Hook and the Aurora, Colo. movie theater shooting a few months prior were false flag operations designed as a pretense to limit the Second Amendment and part of a global conspiracy out to kill and enslave them, Mattei said, quoting Jones.

Earlier in the trial, Jones went on Infowars and told his viewers they came for the Second Amendment with Sandy Hook and now they were coming for the First Amendment, too.

The judge in the case, Barbara Bellis, has attempted to avoid the whole issue by barring Jones from saying in the courtroom that his free speech rights under the First Amendment have been compromised. This trial is about damages. Jones was already found liable for defamation.

The First Amendment is not an issue, Bellis said.

That has not stopped Jones from talking about it outside the courthouse.

We're supposed to be the land of the free, home of the brave, and they're using these dead children not just to try to get rid of the Second Amendment, but now the First Amendment, he said during a press conference on the courthouse steps.

There are limits to the First Amendment. It does not, for example, protect a right to spread misinformation.

It's very frustrating to see someone who has apparently, from all indications, been spreading knowing lies, said David Schulz, director of the Media Freedom and Information Access Clinic at Yale Law School. To try to hide behind the protections of the First Amendment is quite frustrating. It's not what the First Amendment protects. The Supreme Court has said that there's no First Amendment value in lies, and lies that cause harm can be punished.

While Jones might have the First Amendment right to say what he thinks on the air or in court, he cannot use his platform to lie about individuals if those lies cause harm.

He certainly has a right to express his opinion about the right to bear arms, but that's not what's going on, Schulz said. And he doesn't have the right to make up lies to try to fan the flames of, you know, Second Amendment advocates.

William Dunlap, a Constitutional law professor at Quinnipiac University, said there are many limits to the freedom of speech.

Both Congress and the states have a lot of law regulating or punishing speech, he said. "Among the categories of speech that are not protected completely by the First Amendment is defamation, which is what this case is all about.

Throughout the current trial, and the previous trial held in Texas, the question arose of whether or not Jones is a journalist and if Infowars practices journalism. The First Amendment protects not only freedom of speech but freedom of the press.

Opinions are protected, as are honest mistakes.

The Supreme Court over the years has been very careful to protect innocent mistakes when they're made by news organizations on issues of public concern, because, as it is explained, errors inevitably happen in the give-and-take of covering the news, particularly when you're under a deadline, Schulz said.

But Jones and Infowars, Schulz said, did not make an honest mistake when they suggested, year after year, that the parents were actors and the massacre never happened.

What has been going on here is a pattern over the years of repeating information that has been shown to be untrue, he said. The First Amendment says that when you're talking about matters of public concern, that there has to be a knowing falsehood.

Jones has said that he genuinely believed the Sandy Hook massacre was faked, but thats not good enough, according to Schulz.

You can misbelieve something, he said. But when something is so outrageous, so unbelievable, that only a reckless person would put it into circulation. would repeat it, that's not protected. And to continue it over a number of years, it's certainly conduct that can be punishable consistent with the First Amendment.

Ryan ONeill, a professor at Quinnipiac University and a partner with the Law Offices of Mark Sherman, practicing in the areas of criminal defense and defamation, said he believed Jones is being misleading.

Jones is not allowed to say in court that his Constitutional right to free speech is being violated. Hes also not allowed to say in court that he believed Sandy Hook was a calculated false flag maneuver to take away Second Amendment rights.

That, ONeill explained, is because Jones was already found liable.

I understand that he has a problem with the fact that he never had a jury decide whether he was liable, but that was decided by the judgment of the court, ONeill said. The problem is, that that judgment happened because he did not follow the rules of the court with respect to how information is supposed to be exchanged.

New Haven-based attorney Alex Taubes explained that there are rules in any court case.

Both sides have to comply with deadlines, both sides have to hand over to the other side their evidence, he said. Alex Jones wants to claim our system of government, or freedom of speech, open courts, as his savior, but when it came time to actually comply with court orders he refused to do so.

Its not just the court in Connecticut that issued a default judgment in favor of the Sandy Hook families because Jones had so flagrantly ignored the courts rules, specifically the rules on discovery. A judge in Texas decided similarly.

The fact that two judges in two different states reached the same conclusion about Alex Jones litigation conduct tells you, I think, that it was very substantial violations and it wasn't just something that was done by accident, ONeill said.

In ignoring the court's rules, Jones lost his chance to make a free speech argument.

He's talking about things that he would have had the opportunity to potentially argue if he had followed the rules, ONeill said. He didn't follow the rules, and so what Bellis is saying is, It doesn't matter whether you believed it, or what your beliefs are based on right now, because that issue has come and gone. You had the chance to litigate it. You decided not to follow our rules when litigating it, and I had no other choice but to sanction you by deciding the issue of liability.

That is, unless plaintiffs decide to raise questions of motive themselves. If Mattei and his colleagues suggest, as they have, that Jones motive was money, that allows Jones to offer a counter argument.

ONeill called it a calculated high-risk, high-reward scenario. Every time the plaintiffs lawyers raise political issues, Jones lawyer, Norm Pattis, says they opened the door.

Injecting some of these things into the case certainly does arouse more negative emotions toward Alex Jones when they frame it in their way, ONeill said. But it does allow opportunities for Pattis in the defense to start injecting some of these other things that can create more distractions, or also create more justifications in the minds of some folks that might be deciding this.

On the day of the Sandy Hook shooting, literally as the parents were learning that their children had died, Jones was on the air claiming that the massacre was a manufactured false flag operation intended to take away his and his viewers Second Amendment right to bear arms.

Plaintiffs have argued in court that Jones was essentially fear-mongering, that his real motivation was and remains money.

It's come out in the trial so far that he had sponsors, advertisers that were gun manufacturers, and that they were courting other gun manufacturers as advertisers, said University of Connecticut journalism professor Amanda J. Crawford.

The Second Amendment has been, to some degree, a pivot point on which the strategies of both the plaintiffs and defense have rested. When Pattis questions a plaintiff on the stand, he asks whether or not they knew how Jones felt about the Second Amendment, and how the shooting changed their anti-gun activism.

He wants to convince the jury that the goal of the plaintiffs is to silence Jones free speech to talk about guns, that this is a plot to undermine Jones because they don't like what he believes about guns, Crawford said.

There is a connection between mass shootings and gun sales, as Dunlap said: Every time that there is a mass shooting or some other atrocity involving guns, that the sale of guns would go up, because the manufacturers and organizations like the National Rifle Association would say, OK, now they're going to come after your guns.

Claiming that your Second Amendment rights are at risk is a business and advocacy strategy Dunlap said has been going on for years, for decades. Proposals for gun legislation may make it harder for certain people to get guns, those laws are not unconstitutional, he said.

Though he said he disagrees with the substance of Jones arguments disagree with them in a big way Dunlap said using the Bill of Rights to defend your beliefs is, in and of itself, why the Bill of Rights exists.

There aren't very many individual protections in the Constitution itself, but in the Bill of Rights, in the post Civil War amendments, are a lot of rights that I think people are entirely justified in using to protect their behavior, he said.

Jones cannot speak on the record, in court, about the First Amendment, something Crawford sees as a bit of a missed opportunity.

Jones spread misinformation about a national (and local) tragedy. A discussion on the record, in court on where First Amendment protections begin and end might have been valuable to our society.

The court has said that because he didn't cooperate, he can't make his First Amendment argument, she said. Does that help our conversation about what is misinformation, what's allowed in the First Amendment? Not at all.

The default judgment is good for the families, Crawford said. It means they dont actually have to prove liability, just the extent of the damage Jones caused. But that also means the discourse is limited.

If you're looking at this as a case that is important in our current moment, about how do we deal with misinformation through the institutions that exist, from an academic perspective its somewhat disappointing that we don't get to have a trial that deals with the merits of this case, she said.

Jones did not explicitly name many of the people who are suing him (though he did name and publicly mock father Robbie Parker, who took the stand recently). But there will be no serious discussion about what Crawford called the finer points of libel.

There will be no arguments about whether or not his speech was protected by the First Amendment, she said. There'll be no arguments about group libel, and whether or not he actually libeled, defamed or inflicted emotional distress on individuals that he did not name.

The default judgment may have been warranted, Crawford said, but it hands Jones a talking point, the ability to claim on television, in press conferences and everywhere else outside of the courtroom, that his rights have been stolen.

He will forever be able to argue that he didn't have a trial on the merits, that he was hamstrung by the legal system, she said. He gets to prove his argument that they were out to get him.

He gets to say that this was the government going after his First Amendment rights, because he didn't get to make that case, she said.

Originally posted here:
How Alex Jones twists the Constitution in his Sandy Hook trial - Danbury News Times

The thing about grievance culture is it never ends. Theres always something else to cry about when your whole identity is wrapped up in the idea that someone usually someone who doesnt look like you is out to get you.

Unsurprisingly, the people who think the woke mob is responsible for everything from their layoff to little Katie turning them down for prom are big gun fans. Self-esteem with a handle.

As it happens, these folks have won everything they wanted. In Bruen, the Supreme Court went ahead and fulfilled the promise of Heller and found an individual right to guns grounded in the Second Amendment. But rather than take the W, theyve embraced the Orwellian weve always been at war with Eastasia approach and will launch into conniptions if you point to the world before Heller.

It all started with a citation to a 2006 piece by law professor Adam Winkler:

This claim shouldnt be controversial unless youre against counting and linear time. Professor Winkler wasnt even talking about federal cases in this article because it was pretty well-established that the Second Amendment did not give people a federal right enforceable in their state. These challenges all involved state constitutions with language mirroring the Second Amendment and of THOSE hundreds of cases, only six struck down a regulation.

I retweeted this same observation with more provocative language, but the same conclusion:

Which also shouldnt be controversial. Its clich at this point to recognize that the far-right of the Supreme Court agreed on this as recently as the 1990s, but clichs achieve that status for a reason.

You can believe the words of the Second Amendment support an individual right to guns if you want, but you cant pretend that existed before Heller.

But gun folks went BONKERS over the mere suggestion that there was a history of law and jurisprudence before 2008. Not gonna lie, watching the gun freak meltdown over this tweet has brought me tremendous joy.

To reiterate, neither of these tweets even suggest that Heller or Bruen are wrongly decided. The sole claim here is that reading an individual right to possess guns regardless of state regulation is a new reading of the Second Amendment.

This is important because literally no one ever responds to this point.

A more representative sample of responses:

* What an unbelievably wrong takr* This is a fucking lie* How did you pass high school?* Erroneous

All fascinating, yet not exactly impeaching the original claim.

Perhaps the folks with big followings are bringing the meat of the challenge:

Mind you, this is not the beginning of a thread. Theres nothing after this. The words it just is represents the sum total of his argumentative acumen. Actually, thats not fair the GIF is.

In a tragic development, his 280 characters got swallowed by all those adverbs, which prevented him from actually presenting any substantive factual, intellectual, historical, legal, or academic argument. Maybe when Elon buys Twitter hell up the limit so this guy can find literally anything to say.

Unfortunately, this is the state of the discourse: sound and fury signifying nothing trying to drown out anyone citing evidence.

Why do these people care so much? Well, they love to live by the sword of vague originalism when its stripping away civil rights, but really hate dying by the sword when anyone pokes into why George Washington lead an army to crush the Whiskey Rebellion for stockpiling weapons outside the aegis of the state militia. Originalism has them tied in knots and its just not enough that the right exists now it had to always exist. And where the past cant support that, it must be suppressed.

Expunge the ratifying statements explicitly identifying the right as a matter of protecting states from a federal army (the army ship ironically has sailed)! Forget the contemporaneous gun regulations in place that the amendments framers accepted! Ignore that George Mason as the primary author of the text didnt support this reading and expressly rejected the Jeffersonian proposal (suggested for the earlier Virginia Constitution) of an individual right! Erase the caselaw including the hundreds covered by Professor Winklers article. Justice Stevens laid out all this history in Heller, the folks complaining on social media just wish that record wasnt there.

While the sad trolls are fun to laugh at, a few people actually tried to bring something to the discussion. Unfortunately, none seemed to have a grasp of the material they cited. One posted a third-party summary of Presser v. Illinois (1886) a case about a law banning people from forming private militias that said the Second Amendment right was a right of individuals, not militias, and not a right to form or belong to a militia, but related to an individual right to bear arms. These words, of course, are found nowhere in that opinion. In reality, the opinion reaffirmed that the Second Amendment has no other effect than to restrict the powers of the national government and that state and municipal regulation is allowed. The only wrinkle it added to the Second Amendment landscape was the observation that states cant pass gun laws so as to deprive the United States of a reserve military force. Not only is this not particularly relevant today since warfare is no longer BYOG it certainly isnt laying the groundwork for an individual right.

Another cited a legal treatise written in 1824 by William Rawle, who had served in the legislature that ratified the Second Amendment:

In the second article, it is declared, that awell regulated militia is necessary to the security of a free state; a proposition from which few will dissent

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

The thing about cherry picking is that it only works if you assume the other person wont go back and check your work. But I will!

A practice pointer for young lawyers: be wary of an ellipse. This particular ellipse cuts out some pretty important stuff! Like Rawles explanation that well regulated is expressly included in the text because it imposes a duty upon state governments to regulate guns for the purpose of mak[ing] good soldiers. Likewise, if this person then read for TWO MORE PARAGRAPHS, theyd have found that Rawle believed states can impose any regulation on guns necessary to avoid the disturbance of the public peace, and that open carry provides sufficient cause for authorities to stop anyone and warrants imprisonment if that cannot prove good intention.

I guess this is why the more seasoned responders restricted their comments to youre just wrong. As superficial as that may be, support for their position just goes downhill from there.

Earlier: Gun Ruling Proves Supreme Court Just Coasting On Vibes At This Point

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Go here to see the original:
Gun Nuts Throw Saddest Tantrum Ever Learning That There Was A World Before Heller - Above the Law

I recently discovered that if you walk around New York City while carrying a colonial-era musket, you get a lot of questions.

You gonna shoot some redcoats?

Wheres your well-regulated militia?

What the hell, man?

Questions aside, a musket can come in handy. When I arrive at my local coffee shop at the same time as another customer, he tells me: You go first. Im not arguing with someone holding that thing.

Why am I carrying around a 1795 firearm? Well, its because Im deep into Project Constitution. Ive pledged to live by the US constitution as strictly and literally as possible. I want to see what its like to be the ultimate originalist.

I got the idea after the US supreme courts latest controversial term. As you might know, its the most conservative court in decades. It overturned Roe v Wade, saying that the constitution does not guarantee a right to abortion. It bolstered gun rights and took power away from the Environmental Protection Agency.

This is, in large part, because several justices adhere to a philosophy called originalism in some form or another. The main gist of originalism is that we should follow the original meaning of the constitution as it was understood when it was first implemented in 1789 (or, if the decision involves one of the constitutions amendments, whenever that was ratified).

So I figured: what if we took this to its logical endpoint?

To be fair, there are many versions of originalism, and no originalist would go as far as I do. Originalists argue that the constitution doesnt require you to opt for muskets over modern guns. Instead, a good originalist takes the centuries-old principles of the constitution and applies them to the current day, using history and tradition as a guide. So the right to privacy, originally meant to stop the constable banging on your door, now applies to your smartphone.

Fair enough. But it seems to me and many other observers that the courts originalists can be pretty stingy when it comes to updating, especially if it involves womens rights, gay rights or environmental regulations. One of the dangers of originalism is that the people who practise it can easily get too frozen in history, and I think thats what some members of the court did this term, says Glenn Smith, a constitutional law professor at California Western School of Law. Theyve let their hidebound sense of history overcome a reasonable originalist approach.

More than that, originalism can be wildly inconsistent. Sometimes a certain constitutional right is interpreted as narrowly as possible Clarence Thomas, the most hardcore originalist on the current supreme court, doesnt believe the liberty recognised in the 14th amendment can expand to include gay marriage, since the drafters never conceived of gay marriage. Other times, a right can be stretched to the breaking point. Most originalists say the right to bear arms covers muskets as well as AR-15 semi-automatic rifles, even though they are arguably vastly different.

So what if I try to be consistent? What if I always apply the narrowest interpretation, avoiding the hubris of assuming I know what the countrys founding fathers would have thought? What if I adhere to the strictest version of what was written in 1789 or, in the case of the later amendments, what was written in 1791 or the 1870s? After all, I want to be prepared in case originalism gets even more extreme.

My Month of Living Constitutionally led me on a weird, enlightening and often deeply awkward journey. I handed out pamphlets, I fetched my own water, I annoyed my wife.

Here is the tale.

As a journalist, Ive always been grateful to the founding fathers for the right to free speech. But Ive learned the 18th-century idea of free speech was startlingly different from todays both in how we communicate and in what is allowed.

First, theres the method I use to express free speech: Twitter. Fortunately for the founding fathers, theirs was a world of paper and ink. It seems to me Twitter is like the AR-15 of speech. Its another animal altogether. To be safe, I decide to stick to the 18th-century version of Twitter: pamphlets.

I order a quill pen and parchment paper, and scratch out a dozen analogue tweets, one on each piece of yellowed paper.

I go to midtown Manhattan to hand out my mini-pamphlets. Its harder than I thought. Most people skilfully avoid my gaze, looking at the pavement, the skyline, anywhere but my face.

Finally, I approach a woman waiting for the light to turn green and read her my tweet out loud: I find it egotistical that we capitalize the word I but not he or she or they.

Yeah, she says. I guess thats interesting.

Do you want to take my pamphlet?

No, I do not.

As mixed as the reaction is, it still feels better than the Twitter cesspool. Just seeing people face to face has a healthy effect.

Now I should mention one other thing: to get fully into the founding fathers mindset I was wearing an Alexander Hamilton costume. This is not constitutionally mandated. But Ive found that there are advantages to dressing the part. The outer often affects the inner. With my tricorn hat, I somehow felt more dignified (even though I was mistaken for both a pirate and Napoleon but, oddly, not Hamilton).

Back in constitutional times, there was another big first amendment difference: the content of speech was much more restricted. Governmental limitations of expressive freedom were commonplace, law professor Jud Campbell wrote in the Yale Law Journal in 2017. Blasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation.

It wasnt quite Stalins Russia, but it wasnt a free-for-all. You could be arrested for insulting God or trashing the president. Whats more, according to influential originalist judge Robert Bork, the first amendment only referred to prior restraint, meaning that the government couldnt stop you from buying a printing press. But it could punish you afterwards for what you published.

This will be fun, I think. I get to be a puritanical censor to my kids and blame it on the constitution. When my son drops his iPhone and says: Goddammit! I reply: That is unprotected speech. Say Gosh darn it!

Then I go on Twitter (I know, Im a hypocrite) and open an account under the name OriginalDude89.

I reply to people calling President Biden or Republican senator Lindsey Graham traitors. You realise your seditious comments are not protected by the first amendment, at least as it was conceived of by the founders, right? You could be prosecuted if this were the 1790s. Please remove.

One responds: LMFAO whatever dude!

The 14th amendment, which guarantees equal protection, is beloved by liberals, who believe it extends to gay rights and womens rights, among others. Most liberals adhere to a philosophy called the living constitution the idea that rights and meanings in the constitution evolve to fit the times.

Uber-originalists have a much narrower view. The 14th amendment was ratified after the civil war, in 1868, and should therefore only apply to the rights as understood in 1868. It was passed to guarantee rights to Black men, recently freed from slavery. Antonin Scalia, the famously conservative justice who served until his death in 2016, argued that the constitution didnt say anything about gender-based discrimination.

In 1868, women couldnt vote, and in many states couldnt hold certain jobs. This is going to be tricky.

For instance, just five years after the ratification of the 14th amendment, the supreme court upheld Illinois decision to deny a law licence to a woman based on her gender. I email the lawyer who works with my book publisher.

Dear Michelle:

For the duration of this experiment, Im afraid I cant deal with you on legal matters related to my books and articles. Nothing personal!

Id be happy to deal with any male colleagues of yours in the meantime.

Thank you.

I feel like a huge dick pressing send.

Likewise, in 1868 married women in many states couldnt sign contracts. My wife Julie is president of an events business, and prepares and signs several contracts a day.

I tell her that, from the point of view of the constitutions drafters, this activity isnt protected. I might have to take over.

Great! she says, moving from her desk to the couch and picking up a magazine. Ill be over here if you have questions.

Thus commence several hours of me trying to navigate confusing and irritating paperwork. I have to ask Julie so many questions about cancellation policies and pricing that she eventually fires me.

This isnt helping me, she says.

In addition to sexism, I have to address racism. The original 1789 constitution contained notoriously racist parts that slave-holding states insisted be included. For instance, enslaved Black people only counted as three-fifths of a person for the purposes of calculating congressional representation.

Luckily I dont have to follow that particular egregious rule. It was overturned by three post-civil war amendments.

But of course that doesnt mean the 14th amendments promise of equal protection immediately got rid of constitutionally permitted racism. For instance, Black men could vote, but in many states they could not marry a white woman.

As legal scholar Elie Mystal writes in Allow Me to Retort: A Black Guys Guide to the Constitution: The people who ratified the 14th amendment hated Black people marrying white people Either our understanding of the 14th amendment evolved to include a rejection of racist anti-miscegenation laws, or it didnt. If the 14th amendment doesnt evolve, Alabama could force people to submit pure-blood certifications from Ancestry.com before issuing marriage licenses.

It was not until 1967 that the supreme court ruling lifted intermarriage bans nationwide. Thankfully, today even the most ardent originalist would say interracial marriage is protected. But since Im being strict as possible about hewing to the original vision, I guess I shouldnt. Which is a horrible thing to contemplate.

I call up my sister. She is married to a man from Peru with mixed Latin and indigenous heritage. I explain that her marriage, from an 1868 viewpoint, would probably have been seen as an interracial marriage, which would have been banned in some states.

So American history has a lot of racist assholes not a huge surprise, she says. You know I want to be supportive, but this is crazy.

Agreed.

I guess I could send you back your wedding gift, she suggests.

That could work Ill hold on to the wine glasses I gave her till the project ends.

Actually I think I wont send them, she adds. You can come and pick them up if you want.

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At least the pamphlet escapade had some redeeming value. This was just plain terrible.

Its time to return to the second amendment. Originalists argue that 2A didnt just apply to muskets. Scalia wrote in a 2008 opinion that the amendments central component was about individual self-defence the amendment applies to bearable arms not in existence at the time of the founding. So it can be stretched to include todays weapons.

Ironically, when it comes to guns, some liberals argue we need to hew more closely to the original worldview. They say muskets and AR-15s are just too different. One shoots four rounds a minute, the other can shoot dozens. Liberals argue its like taking a law written for bicycles and applying it to an 18-wheeler truck. The fact that we use the same word to describe them is almost an etymological coincidence, says Peter Shamshiri, co-host of 5-4, a podcast about the supreme court.

To avoid hubris, Im going to stick with muskets and exercise my 2A rights by getting one. Ive never owned a gun, though I was on the rifle team at my summer camp, so I guess thats something.

I call up a Texas store called Collectors Firearms. I have my eye on a model 1795 flintlock musket. Its crazy expensive $2,000 but the cheapest one I could find. A salesman named Nico answers the phone. I tell him Im interested, but I want to make sure it works.

Yes, it should fire. But since its an antique, we dont recommend shooting it.

Why not?

There is a chance of catastrophic failure.

That doesnt sound great. But what does it actually mean? Basically, Nico explains, it could explode in my face.

Well, nothing ventured, nothing gained. I give him my credit card number.

Three days later, the musket arrives. Its 5ft almost as tall as my wife. I know it was once a deadly weapon it may have even killed someone but Im struck by how elegant it is: dark wood, intricate metal fixings. Its also heavy. Im amazed the revolutionary soldiers were able to carry these all day. And though Im not a gun guy, I also have to acknowledge that this object helped the Americans win the revolution. Im surprised by my desire to keep this historic relic even after my project ends.

So how do I shoot it? I watch a bunch of YouTube videos. Its quite a process. Take out a cartridge (paper tube filled with lead ball and powder). Bite off top. Spit. Open pan. Pour some powder in the pan. Pour rest of powder, along with ball and paper into gun barrel. Take out ramrod. Push ball down. Return ramrod. Cock. Aim. Fire.

I think Ill need to cancel my dinner plans.

But first, Ill need the lead balls and old-style black gunpowder. (Im told not to use modern gunpowder under any circumstances.) I call a Minnesota-based company that sells vintage ammo. I get 25 balls. But the gunpowder? Well, the problem is, the factory is out of commission right now. Its being rebuilt from their latest mishap.

Note to self: dont get a job at a vintage gunpowder factory.

So for the time being, I have to be satisfied with just carrying my unloaded musket around. Which I do. I realise my experience would have been vastly different if I werent a white man. But I find walking around by turns exhilarating and stressful. Exhilarating because on some animal level I feel safer, more powerful. Which is insane, because it isnt even loaded. And stressful because, well, what if I run into someone with a gun from this century?

I have a team of constitutional advisers, and I ask one of them what he thinks of my musket. He points out that a strict originalist interpretation of the second amendment could favour the musket. But it could go the exact opposite direction: it could encourage citizens to buy the latest military gear from Lockheed Martin.

A lot of the rhetoric from the right about the second amendment is about the potential to resist government, says Shamshiri. If thats true, even semi-automatic guns arent enough. You wont be able to face down an invading air force and tanks with just guns. That interpretation serves as an argument for access to military-grade weaponry, he says. The point is, theres no concrete originalist interpretation. It can be taken in different directions.

I dont have the budget for a Stinger surface-to-air missile.

Ive been hoping to use Project Constitution in my perpetual battle with my kids over screen time. And I think I found my secret weapon: good old amendment 14.

The amendment says that no state shall deprive any person of, among other things, liberty. But what is liberty? Well, a 1923 supreme court ruling defined liberty as, among other things, the orderly pursuit of happiness by free men.

So the constitution enshrines our right to pursue happiness. But it only enshrines ways to achieve happiness that were approved of when the 14th amendment was ratified in 1868.

I knock on my sons door. The bad news is, no electronics for the duration of my constitution project. The good news is, I got you this.

I hold up a cup-and-ball that Id bought online a 19th-century wooden toy where you try to get a ball on a string into a cup.

Also, no Netflix, since such entertainment is not protected by the original intent of the first amendment, I say. In the 18th century, some states banned all theatrical performances because of their morally corrupting influence, Jud Campbell wrote in the Yale Law Journal.

My son ignores me.

Which allows me to explore another part of the constitution the eighth amendments ban on cruel and unusual punishment.

How can I punish my son in a non-cruel, non-unusual way? Well, let me look to history and tradition. Up until the 1820s, the pillory the wooden contraption with holes for the head and hands was a frequent way to shame criminals.

According to extreme originalism, if a punishment was common during the founding era, its not cruel or unusual today. For instance, Scalia said the death penalty is constitutional partly because it was common when the eighth amendment was ratified in 1791.

Now I know the eighth amendment is meant for government not personal use, but Im kind of on a roll. I do a Google search for pillory and find theres quite a lively subculture of people who enjoy pillories. Many of the photos of models in stockades wouldnt pass 18th-century obscenity laws. The cheapest pillory I find is $50 and made of cardboard.

OK, hands and head in, I say when it arrives a few days later.

My son shakes his head.

Just do it for my project, I say.

Fine.

He stays there for 30 seconds, then tears out of it like the Hulk. But he does later spend a few minutes with the cup-and-ball, so thats something.

I spent my month frantically trying to abide by other original principles. The constitution talks about the right to assemble, but does that extend to Zoom meetings? Im not so sure. So I meet colleagues in person.

The constitution says the government cannot do searches and seizures without reason. But they only talked about searches of physical spaces. So are my computer files protected? Maybe the government could seize thousands of documents from my computer without violating the constitution. (Not that I have any secrets about foreign nations nuclear capabilities.) The only solution I can think of is to print out all of the laptops documents, keep the pages and delete the digital files. Which was a massive waste of time and black ink cartridges. I gave up after 200 pages.

The constitution also says that no soldiers shall be quartered in my house without my consent. I put an ad on Craigslist offering a free room to a member of the military if and only if I decide theyre cool after an interview. The only response is from an architecture student from Turkey.

So how do I feel? First, I feel grateful that I dont live in 1789. Despite the recent erosion of our civil liberties, it still feels freer than it was in the powdered-wig era. Im also a fan of modern plumbing.

Second, I know that originalists might say that I lived by an unfairly exaggerated version of originalism. And thats probably true. But at the end of this, Im not totally anti-originalist. Originalism comes in many flavours. Im just opposed to the way some are practising it now.

Originalism came to the fore in the 1980s as a way to stop what the conservatives saw as the liberal supreme courts overreach. They worried the court which approved of affirmative action and the right to abortion was untethered and just willy-nilly making rulings that aligned with their politics. The liberals were legislating from the bench.

So originalism was the proposed solution. Judges should put aside their views and objectively focus on the words of the text. As the conservative Federalist Society puts it: Originalists analyze the text and evidence first, then conclude what result logically follows. As opposed to the living constitutionalist camp that decides on a correct result and then use the text and precedent to support their initial assumption.

Read the rest here:
Party like its 1789! My weird, enlightening month living strictly by the US constitution - The Guardian

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Texas Attorney General Ken Paxton isnt just running for a third term while under indictment for securities fraudhes running from process servers too.

On Monday morning, according to an affidavit filed in federal court, Paxton and his wife, state Sen. Angela Paxton, embarked on a Coen Brothers-esque escape from a man who was attempting to hand the AG a subpoena to appear in federal court. Paxton had been named in a class-action lawsuit filed by reproductive rights groups in the state, who are seeking an injunction to block prosecutors from using a 2021 law to target groups that help Texans obtain abortions in other states.

According to the affidavit, the process server, Ernesto Herrera, parked outside the Paxtons home, knocked on the door, and saw both the attorney general and his wife come to the door. But upon seeing Herrera, the AG backed away and let his wife handle the interaction. Herrera identified himself as a process server trying to deliver important legal documents to Mr. Paxton. She told him that the AG was on the phone and then in a hurry to leave, after which Herrera handed her his business card, and then returned to his car to wait.

Not long after, the affidavit stated, Paxtons driver pulled up in a Chevy Tahoe, and the AG began walking out to the vehicle. Then Herrera called out his name. As soon as he heard me call his name out, he turned around and RAN back inside the house through the same door in the garage. A few minutes after that, Paxtons wife ventured out and started the couples truck, which was also parked in the driveway. Then the attorney general RAN from the door inside the garage towards the rear door behind the driver side. Herrera attempted to serve the documents, again identifying himself, and eventually left them on the ground outside the vehicle.

Paxton responded angrily to the Texas Tribunes write-up of the incident on Tuesday morning, framing the encounter as a precautionary maneuver at a time when elected officials are being subjected to violent threats.

All across the country, conservatives have faced threats to their safetymany threats that received scant coverage or condemnation from the mainstream media, he tweeted. Its clear that the media wants to drum up another controversy involving my work as Attorney General, so theyre attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family. In a subsequent statement, Paxton invoked the Second Amendment and said that the server was lucky the situation didnt necessitate force.

But if it was concern for the safety and well-being of his family that compelled Paxton to flee from a suspicious man with a manila envelope, its not really clear why his wife dealt with him. If anyone is familiar with what its like to be subpoenaed, its the scandal-plagued attorney general of Texas.

Paxtons panicked extraction is a fitting addendum to the lawsuit he has been named in, and the broader legal environment of fear and surveillance that he has helped cultivate.

Texas is a state that, with Paxtons explicit backing, investigates the parents of trans kids for child abuse. Its a state where, again with Paxtons support, ordinary citizens have been deputized to collect bounties on fellow citizens seeking abortions. And its a state where investigators searching for evidence of voter fraud peep through bathroom windows.

Several of the reproductive rights groups who are suing Paxton have already been targeted by powerful anti-abortion groups and elected officials seeking to depose them and collect information on their donors, part of what my colleague Pema Levy characterized as the dystopianrise of vigilante enforcement to reverse progress and entrench physical and psychological control over women, LGBTQ people, and people of color.

The groups targeted by Paxtons legal regime really are operating in a climate of fear and intimidation thats been imposed on them by the state, but you dont see them cavalierly talking about using the Second Amendment against a process server. In this case, its the person most committed to eroding the privacy of others whos complaining loudest about his own.

See more here:
Don't Try Serving Ken Paxton With a Subpoena, Unless You Want to Get Shot Mother Jones - Mother Jones