Donald Trump Removed From Maine Ballot
Another state has declared him an insurrectionist.
WaPo (“Donald Trump removed from Maine primary ballot by secretary of state“):
Maine barred Donald Trump from the primary ballot Thursday, becoming the second state to block the former president from running again because of his actions before and during the Jan. 6, 2021, attack on the U.S. Capitol.
The decision by Maine Secretary of State Shenna Bellows (D) is sure to be appealed. The Colorado Supreme Court last week found Trump could not appear on the ballot in that state under a part of the U.S. Constitution that prevents insurrectionists from holding office. The Colorado Republican Party has asked the U.S. Supreme Court to review the case, which could resolve for all states whether Trump can run again.
Both states have temporarily put their decisions on hold so Trump can pursue appeals.
In California, the nation’s most populous state, the secretary of state certified Trump’s name on Thursday, despite a request from the state’s lieutenant governor to consider excluding him on constitutional grounds. Gov. Gavin Newsom (D) had pushed back on the idea, saying Trump should be defeated at the ballot box.
[…]
“The events of January 6, 2021 were unprecedented and tragic,” Bellows wrote in Thursday’s decision. “They were an attack not only upon the Capitol and government officials, but also an attack on the rule of law. The evidence here demonstrates that they occurred at the behest of, and with the knowledge and support of, the outgoing President. The U.S. Constitution does not tolerate an assault on the foundations of our government, and [Maine law] requires me to act in response.”
Trump campaign spokesman Steven Cheung said Trump would quickly appeal the Maine decision.
“Democrats in blue states are recklessly and un-Constitutionally suspending the civil rights of the American voters by attempting to summarily remove President Trump’s name from the ballot,” Cheung said in a statement. “Make no mistake, these partisan election interference efforts are a hostile assault on American democracy.”
Colorado, Maine and more than a dozen other states hold their primaries on March 5, which is also known as Super Tuesday. Election officials need firm answers on who can appear on ballots weeks before then so they can print ballots and mail them to absentee voters, including ones who are overseas.
The challenges to Trump’s candidacy have focused on primaries because Republicans won’t choose their nominee until states hold their nominating contests and the party holds its national convention in July. If Trump’s ability to run has not been resolved by then, attention would shift to the general election.
Trump’s opponents have targeted their efforts to states where it is easiest to object to a candidate’s eligibility. In Maine, voters filed their challenges under a state law that allows them to lodge objections with the secretary of state. Bellows held an eight-hour-long, live-streamed hearing on those challenges on Dec. 15 under a provision of that law and determined Thursday that Trump’s name cannot appear on Maine’s primary ballot.
Bellows cited the Colorado decision in reaching her conclusion that the Jan. 6 attack “was violent enough, potent enough, and long enough to constitute an insurrection.” And Trump, she said, incited that insurrection by repeatedly and falsely claiming the election was stolen, summoning his supporters to Washington, telling them to “fight like hell” in a speech just as Congress was preparing to certify Joe Biden’s win, and criticizing Vice President Mike Pence on social media as the attack unfolded.
Trump, she wrote, “used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.” Trump, she added, “was aware of the likelihood for violence and at least initially supported its use given he both encouraged it with incendiary rhetoric and took no timely action to stop it.”
Trump has five days to appeal the determination to Maine’s Superior Court. From there, the appeal could go to the state’s Supreme Judicial Court and the U.S. Supreme Court.
I’ve written about this matter numerous times, both when the idea of banning Trump under Section 3 was floated in theory and after the Colorado decision. I shan’t repeat myself here other than to say that I expect the Supreme Court to overturn it and think that would be the right decision.
It was already urgent that they take the case and do so quickly before the Maine decision:
NYT (“Supreme Court Urged to Move Fast on Trump’s Ballot Eligibility“):
The Supreme Court was asked on Thursday to fast-track its review of the stunning Colorado Supreme Court ruling that former President Donald J. Trump was ineligible to appear on the state’s primary ballot.
The request was made by the six voters who won in the state court, which ruled that Mr. Trump was subject to Section 3 of the 14th Amendment. That provision bars officials who promised to support the Constitution from holding office again after engaging in insurrection.
The voters also told the justices that they would not oppose review of that decision.
There are cases pending in several states challenging Mr. Trump’s eligibility on the same grounds. A definitive ruling by the Supreme Court would apply nationwide and settle the matter.
The voters’ request to accelerate the case came the day after the Colorado Republican Party asked the justices to review the state court’s ruling. Mr. Trump has not filed a promised petition seeking review of the ruling, and his general practice has been to move as slowly as possible in the legal proceedings against him.
[…]
In a motion, lawyers for the party proposed a brisk schedule, asking the justices to resolve the case by March 5, when multiple states hold primaries on a day known as Super Tuesday. If it is not, they said, voters “will face profound uncertainty and the electoral process will be irrevocably damaged.”
“Under the standard briefing schedules provided by this court’s rules, the case would not be argued and decided until well into 2024,” the motion said. “Meanwhile, 2024 is a presidential election year, with the first primary elections and party caucuses scheduled to take place in January and more than half of the state primary elections to be concluded by the end of Super Tuesday. ”
In their own motion, the six voters who prevailed in the Colorado Supreme Court urged the justices to move even faster. They asked that the U.S. Supreme Court order Mr. Trump to file his petition seeking review by Jan. 2 and that the justices consider whether to hear the case at their private conference on Jan. 5.
[…]
Voting in Colorado is almost exclusively by mail, and state officials start mailing ballots to in-state voters on Feb. 12. “Having a decision on the merits by Feb. 11 would ensure that every in-state Colorado voter knows of this court’s decision before receiving their ballot and casting their primary vote,” the voters’ motion said.
The motion added that the case presents questions of “exceptional national importance.”
That two states have seized on the novel theory that a 155-year-old provision aimed at Confederate leaders excludes those partisan officials simply deem “insurrectionists” is, well, bold. Congressional Research Service legislative attorney Jennifer K. Elsea’s legal sidebar on Section 3 is an excellent backgrounder, highlighting how uncharted this territory is.
Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities
that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms
to enforce disqualification. The clause has been seldom used, and the few times it has been used in the
past mainly arose out of the Civil War—a very different context from the events of January 6. It is
therefore unclear to what extent historical precedents provide useful guidance for its application to the
events of January 6.[…]
Enacted in the aftermath of the Civil War, Section 3 seems specifically designed for the Reconstruction
Era but may be applicable to modern times as well. Section 3 was for the most part used only for the short period between its ratification and the 1872 enactment of the Amnesty Act. The Amnesty Act removed the disqualification from most Confederates and their sympathizers and was enacted by a two-thirds majority of Congress in accordance with the terms of Section 3. Some argue the Amnesty Act operates retrospectively. In a recent case, Cawthorn v. Amalfi, discussed in this Legal Sidebar, the U.S. Court of Appeals for the Fourth Circuit found that the act does not apply to later insurrections or treasonous acts.Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the Confederacy, and Congress in some cases took action to refuse to seat Members. Congress last used Section 3 of the Fourteenth Amendment in 1919 to refuse to seat a socialist Congressman accused of having given aid and comfort to Germany during the First World War,
irrespective of the Amnesty Act. The Congressman, Victor Berger, was eventually seated at a subsequent Congress after the Supreme Court threw out his espionage conviction for judicial bias. Recently, various groups and organizations have challenged the eligibility of certain candidates running for Congress, arguing that the candidates’ alleged involvement in the events surrounding the January 6, 2021, breach of the Capitol render them ineligible for office. No challenges have to date resulted in the disqualification of any congressional candidate. A New Mexico state court, however, has removed Otero County Commissioner Couy Griffin from office and prohibited him from seeking or holding any future office based on his participation in, and preparation for, the January 6 interruption of the election certification.
Regardless, I’d say the issue is now ripe for Supreme Court resolution. It’s a matter of incredibly high stakes, potentially barring the man who might otherwise win next year’s presidential election from running. And, as a practical matter, he needs to be either eligible or not in a matter of weeks.
Legally, historically, I think not allowing Trump on the ballot is entirely defensible. The amendment was seen to be self executing in the past, and there are other requirements for President, like 35 and a natural born citizen, that are not controversial. Nowhere does it say a judicial finding is required. And you could certainly argue that a Congressional finding was made.
That said, if Trump was removed from the ballot this way, he’d get to be his favorite thing, a victim, for the rest of his life, and we’d have another place for the Lost Cause people to coalesce behind. He needs to loose, ideally decisively, if the Republican Party has any chance of becoming sane again.
However, I’d also be in favor of excluding him from the ballot as someone who claims to have been elected President twice. Force him to either admit he lost, or go away.
Up until recently I agreed with you whole heartedly about needing a conviction before someone is barred from federal office, or something similar. But now I’m not so sure. The judge in Colorado weighed copious evidence and determined that Trump’s actions met the definition of insurrection and therefore he was ineligible. Looked at in that light what you are saying is essentially that enforcing this constitutional amendment will bring a lot of resentment and anger, so we shouldn’t enforce it. That kind of thinking is what led to the Klan and Jim Crow.
Despite what it sounds like, I’m not giving you grief here. I waver between the position you espoused and the one I posited above on a daily basis. I’m not sure where I’m going to end up.
A grammatical quibble. The subtitle would more correctly read, “Another state has recognized that Trump is an insurrectionist”. A declaration can be arbitrary, his insurrection is a fact.
You may reply that lawyers are arguing about whether it’s a fact. Lawyers can manage to argue against anything. It’s still a fact that he tried to replace the legitimately elected president with himself. And broke his oath in the process.
As the Colorado Republican party has officially filled an appeal for that decision, so now it’s just a matter of time.
I think the worst outcome of this would be a funding that section 3 doesn’t apply to the Presidency.
I still suspect that the Supreme Court will end up suggesting that there needs to be some type of Federal funding on of someone participated in an Insurrection.
The due process clause in the 5th and the 14th amendments, mandate no person may be deprived of life, liberty, or property without due process of law.
Disqualifying Der Kleine Fuhrer from running for a job, does not constitute a deprivation of life, liberty, or even property. So the due process argument is a little specious.
The problem, mattbernius, with requiring a federal finding is that elections – even federal elections – are run by state governments. At what point does the federal government make such a finding and who is the responsible officer to initiate it? You could (and may) end up with the person at issue being elected to the office that is charged with making a federal finding not to seat him. That doesn’t sound right.
It does not need to be insurrection, found this in LGM comments:
https://www.lawyersgunsmoneyblog.com/2023/12/maine-secretary-of-state-removes-trump-from-ballot
Can you really claim he has not given aid or comfort?
Oh, and BTW – it is up to the states to set requirements for ballot access. Can you not argue that SCOTUS lacks jurisdiction?
The truly conservative action would be SCOTUS saying, hey, even if Trump got kicked out from running due to the 14th Amendment, there’s a solution already written right there on the box: “But Congress may, by a vote of two-thirds of each House, remove such a disability”. Not their problem. And then punt the entire issue back to Congress.
….it would be the most elegant solution. And if Congress can’t get its act together to have a vote in time, too bad, so sad. Trump’s still off the ballot, and the ability to run for POTUS is NOT an inherent right of a U.S. citizen.
@Grumpy realist:
The general consensus of predictions is that SCOTUS will act to support TFG; I would not care to bet against that assumption. Still, I find it a bit short of inconceivable that SCOTUS might just deny cert.
@charontwo:
Is the boss responsible for the behavior of the underlings. Some of Trump’s people like Ken Chesebro were involved in the planning and organizing of the Capitol breach.
@Kevin: It was self-executing because, in the original instance, the insurrection was well established: participation in the Confederate government or as a military officer. It’s just not that clear-cut what it means outside that limited context or, indeed, whether it does.
@gVOR10: I’m rather agnostic on whether January 6 constituted an “insurrection” but tend to think that Trump and some others involved are insurrectionists.
@Grumpy realist: @charontwo: I think it would be perfectly legitimate for SCOTUS to rule that Trump can’t be excluded absent a conviction. Again, it’s unchartered waters as to whether Article 3 even has meaning beyond the Civil War.
@charontwo: Respondeat superior
We need a constitutional amendment I like to call “…And We Really, Really, Really, Mean it” amendment.
Something that will spell out that constitutional provisions apply whether there’s prosecution or not, lawsuits or not. What’s the use of having a provision in the constitution if it cannot be applied, followed, obeyed, or implemented without a lengthy, costly process that simply delays until something is rendered moot by time?
@Kathy: Again, the provision—along with the rest of the 14th Amendment as well as the 13th and 15th—was designed to remedy a set of problems surrounding the Civil War. It did so for a time, until Congress actually used its powers under the act to grant amnesty to almost everyone associated with said war. And the rest of those amendments were the subject of court cases for more than a century.
The genius of the Constitution is that it’s sufficiently vague and expansive to accommodate radically different circumstances than those who wrote it could have envisioned. But that means it’s endlessly contested in court. We still don’t fully know what the 1st Amendment’s various provisions mean. We’re still litigating the 2nd Amendment. And the 4th. And the 8th.
@James Joyner:
I don’t get where this is coming from. The article makes no mention of the Civil War despite its proximity. If the drafters had meant it only to apply to that they could have easily made it clear. The fact that they didn’t makes it obvious they intended to apply to future traitors as well.
I still believe a good response to these very Putin-like acts of keeping rivals off the ballots is to ensure that these pretty much shoe-in for Biden states have alternative candidates like RFKjr on the general ballot. That way even those who would never vote for a Republican have a non-Democrat-machine candidate to which to cast their ballot.
The CO Sec of State was trying to moot the SCOTUS challenge before the Maine decision. They had issued a statement that until SCOTUS ruled or declined the case, Trump would remain on the ballot. The main threw gasoline.
@mattbernius:
I assume you meant ‘Federal finding.’ and I tend to agree, and if they choose to The Court can dress it up with some radical ‘originalist’ interpretation. I think that Court ‘originalists’ will break this 14th Amendment issue down and parse it to mean that it was meant to apply to Civil War participants only. Ultimately, you know, ‘let the voters decide.’
Nevermind the fact that the voters and the legal slate(s) of each state’s Electoral College presidential electors decided and certified Biden’s win, and Trump et al planned and staged an insurrection with the expressed purpose of stealing the election to keep Trump in office.
I have no confidence that this Court will let a state opt out.
In this case ‘states rights,’ unlike with Dobbs, will not be in play.
@MarkedMan:
I’m glad I’m not the only one uncharacteristically indecisive on this. It makes sense. . . and it worries me.
So, we’ve gone from a state supreme court punishing someone for a crime which they were neither charged with nor convicted of, to a partisan elected official kicking someone off the ballot without any legal process whatsoever.
Let me try and get through to even the most TDS-addled of you.
Lots of right wingers think Joe Biden is a child molester. They’ll even produce evidence to support that opinion. Should red states like Texas and Florida force Joe Biden to sign up with their state sex offender registry and abide by the conditions of being a registered sex offender, even though he hasn’t been convicted of any sex crime?
@JKB: As usual, I don’t follow your “logic.” By keeping Trump off the Republican primary ballot, these states are ensuring that their Republican voters can put a Republican candidate on the ballot who is legally qualified to face off against Biden.
@TheRyGuy:
I’m unaware of anything, except of course the lack of actual evidence or residence in those states, that prevents them from making the attempt. IANAL, but I believe the silly OLC opinion that prevents prosecution of a sitting prez binds only the Federal DOJ.
@James Joyner:
It’s a mistake to think that a provision that arose from one incident applies only to that incident.
It’s evident the intent of the 14th amendment disqualification clause was to keep confederate officials, soldiers, officers, et. out of the federal government. But it’s disingenuous to think it doesn’t apply to future insurrections, should any take place (as one did on Jan 6th. 2021).
Consider the lockdowns, testing, tracing, masks, distancing, vaccine development, etc. that were put in place or implemented to combat the trump pandemic. Now, suppose in the future we get a different pathogen, not a coronavirus, maybe not even a respiratory infection, but which transmits through the air in person to person contact.
Would it seem rational to not even look at the response to the trump virus, because this is a different pathogen and not the one that caused the measures to be implemented last time? Or does it make more sense to use the means and methods we already know will help?
If the US government at the time meant the 14th to dela only with confederates, they could have passed legislation specific to that case. That would have been easier, and could have been more narrowly targeted. They chose an amendment meant to stay in the constitution for decades, if not centuries, which would not be easy to change or repeal, for a reason.
@JKB:
I think things got really mixed up here on multiple counts.
Did you mean the Maine secretary of state and the Colorado case?
Also I don’t see how either one was attempting to “moot” a Supreme Court decision by explicitly building in a stay until appeal. Perhaps you meant draw.
@TheRyGuy:
This makes no sense in that each of those States sex registry laws state literally and explictly that you need to be convicted.
The issue with the amendment in question is it doesn’t state how the determination is made.
So you need to find a better analogy.
Another turd in the sidewalk.
@mattbernius:
I think RyGuy may be stating that Trump hasn’t been convicted, either, so it’s unfair to keep him off the ballot.
@TheRyGuy:
There’s nothing in the 14th Amendment requiring criminal conviction for its application.
First, why would they, when it’s Trump who was found liable in court for rape, not Biden, and when it’s Trump who has repeatedly made gross comments about wanting sex with his own daughter, not Biden?
Second, I don’t red state sex offender registry laws allow placement absent a criminal conviction. Conservative textualists/originalists will of course bend to the text and original intent, right? Pfft.
@CSK:
I know that. The issue is that the Amendment doesn’t specify how the determination/finding of fact of participating in an insurrection is made and who can make it. That’s what many scholars are suggesting the Supreme Court decision may turn on.
That’s entirely different than the analogy given which explicitly specified how a determination is made.
I realize it sounds like me being picky, but this is exactly what is at play in these things. In one case you had a State court make the determination (and have the determination upheld by a higher court). In the other case you had a separate State officer make it. We also know that historically no conviction was necessary.
BTW, this is a great argument against strict textualism or originalism as it’s clear that the Amendment was written with an immediate issue in mind and probably didn’t accommodate for future possibilities (like the rest of the Constitution).
@mattbernius: speaking from my experience in Constitutional Law class, our opinion was pretty much that all SCOTUS judges claiming “originalism” were just coming up with a fancy way of saying”I’ll decide how I like.” If they really believed what they claimed to, they’d have limited the boundaries of the 2nd Amendment to the control of flint-lock rifles.
@Kevin:
Yes one can. One can also argue, and Republiqans do, that the finding of a committee of mostly Democrats–with only two Republicans willing to serve on it*–represents only the position of an opposition majority, not a “finding” per se. One can also note that Republicans had the chance to convict Trump twice and punted both times.
I got no dog in the fight–not registered, haven’t voted since 2000. Do whatever you want. He’s still being kept off the ballot in absence of convictions on the charge that would disqualify him. One appellate court issued a ruling that he was guilty. Call that due process if you want, I guess.
*One of whom had already announced his intention not to seek reelection.
It’ll be very interesting to see what the Supremes have to say on this. If they back the CO/ME approach, the race will be on to disqualify Trump in the general. What we need is a red state with a blue legislature, and I’m not sure I know what state that would be. Colorado was unlikely to go for Trump, but if Maine keeps Trump off the general, that would cost him one EV since they split. If we could get Arizona or Ohio or Kansas to yank him off the general ballot, the election would be over.
@James Joyner:
True, and yet we do not limit any other provision (e.g., birthright citizenship, let alone the expanded due process clause) to only matters in the immediate aftermath of the Civil War.
The clause does not say “the recent rebellion” is says “insurrection” which does not need to be limited to a specific event only. Indeed, it strikes me as establishing a general principle: swear and oath and then rebel against the US and you can’t serve in its government.
I see zero reason why it would only apply to the Civil War.
@Grumpy realist: Except that’s a dumb argument. Are you claiming that the Founding Fathers were unable to consider that technology would continue to improve and that there would be new inventions?
The constitution empowers congress to create a patent office, so it’s clear that the Founding Fathers believed there would be continuing progress.
There’s a better case to be made that the Originalist interpretation would be to let you have nuclear weapons. (“Arms” isn’t just guns, and there were privately owned cannons as part of the militias, so there’s no limit there)
@James:
I think it is very important to note that this is not what happened in Colorado. There was a legal hearing, including Trump being represented by counsel, to establish the issue of fact pertaining to Trump and the insurrection. As I understand it was a standard type of legal process that happens all the time to establish matters of fact.
As such, this is not just a bureaucrat making a determination.
And the clause says “engage” in insurrection not “be convicted of”.
While I agree with you the Court is very likely to overturn this, I am no longer convinced it would the the correct interpretation of the passage.
I think has been legally established, at least in Colorado, that Trump was part of an insurrection, and I think that disqualifies him from being President again.
@TheRyGuy:
He is being deprived of neither freedom nor being asked to pay a penalty.
The question is: did he engage in/foment/support an insurrection? If you want to argue that issue, fine. But if it he did, he is disqualified from office. That’s what the document says.
It is not a criminal penalty to be denied the right to run if one is 34 years of age.
It is a criminal penalty to be denied the right to run if one is not a natural-born citizen.
This is not about criminal (or even civil) punishment. It is about determining qualifications under the constitution as written.
And your counter-example is nonsensical–indeed, the Constitution does not bar criminals from running. Trump could be convicted of every crime he is currently charged with and still be eligible to run for the presidency.
So, normally I’m a guy who’s all for rule of law, and who is advocating for understanding.
I’m really not on this issue. It’s complicated.
So, I have this belief that there is a hardcore of authoritarians in this country, determined to do what is “right” in their mind. These are supporters, or enablers, of the 1/6 insurrectionists.
These people need a beatdown. That’s what’s going to make them stop. They need to feel dominated. I didn’t make them authoritarian, but that’s what they are, and that’s what they respond to. The best sort of beatdown they can get on the national scale is an electoral beatdown.
I think we can put that together. About half of Republicans, from my reading of polls, think 1/6 was bad, and that Trump going on about the “stolen” election was bad. If he wins the primary and runs in the general, that election will be about 1/6 and whether it was bad or not, regardless of what either side wants to change the subject to.
There are so many lines of attack on Trump for this business, bad news for Trump – on this front – will probably keep breaking.
Most of the conservative/Republican commenters I’ve seen don’t directly defend Trump. They nibble at the edges, or try to change the subject, or engage in whataboutism. This is also “chickenpoop”, but it isn’t coming from hardcore MAGAs. It also means that defending 1/6 and Trump’s phony “election fraud” is something they aren’t comfortable with.
Removing Trump from the ballot is not a beatdown. I would expect it to be described as “chicken poop”, and as a technicality.
So, I will be delighted to see the normal wheels of justice griind on in court. I expect further success on this front. I also expect it won’t be easy or swift. I will delight in seeing him convicted.
I will be even more delighted to see him lose the general election by 10 million votes or more, or even better, see him lose the primary because others see that coming.
@Gustopher:
If the argument that Orginalist makes (and many do) is that we have to understand the language as it was understood by the general public at the time it was written, then it is not unreasonable to argue that the 2nd amendment should apply to the weapons of the day. There is simply no way that the Framers anticipated AR-15s (or, really, the general technological advances of firearms as a general matter.).
@Steven L. Taylor:
My view is that the Civil War was the only case in which the clause was self-executing. And it’s damned unclear what’s required to make it applicable to other cases since we don’t have a history of having done so.
@Steven L. Taylor:
Maybe! Again, we just don’t have precedent to go off of here. Unlike age and citizenship, which are pretty clear cut (Obama’s short-firm birth certificate notwithstanding) matters of fact, insurrection has historically been a criminal act. So I’m uncomfortable with courts making an administrative finding.
Now, I’m with you @here that being ruled ineligible isn’t a criminal penalty and therefore doesn’t require the same due process we apply to criminal convictions. And maybe preponderance of the evidence suffices rather than beyond reasonable doubt. But, again, we just don’t have any history to go on beyond the sui generis case of the Civil War.
@Steven L. Taylor:
This. My only issue with what happened–and I didn’t explain it well in my post on the matter–is I am unconvinced a State court can reach this finding because it appears to me to be a Federal issue.
@James Joyner:
There is nothing in the language to suggest this is the case.
I am mostly pointing out that I think you are unaware (or not fully accounting for) the trial that did happen.
And yes, the unprecedented lack of precedent, meaning a decision has to be made on the facts at hand.
I tried to further lay out my thoughts in a full post.
@mattbernius:
Maybe. Of course, by. the same token, the state has jurisdiction over who can be on its ballot.
@James Joyner:
But, again, this is an administrative question, not a criminal one.
@Steven L. Taylor: They meant weapons of war. They might be horrified by what that entails now, but they absolutely meant it at the time.
They also anticipated changes in technology.
They didn’t think it through.
They also put in an amendment process into the constitution, so we could alter it as needed in response to … things. Sure, they fucked up the amendment process and made it much harder than they likely expected.
I have no doubt that Thomas Jefferson would not have wanted one of the descendants of one of his slaves to be building a nuclear weapon in her backyard. He probably wouldn’t have wanted a woman to own property, for starters (we amended to allow that).
Originalism allegedly is about divining the intent of the Founders and then applying that to the current day. Unfortunately, the road to hell is paved with good intentions, and that originalism would end up being an effort to remove exit ramps. It’s a terrible judicial philosophy, and I’m glad that the “originalists” are just lying about following it.
There are lots of things about modern society that would have horrified the Founding Fathers, where we haven’t amended the constitution to allow but instead view it as the logical consequence of their intent and the growth of technology and culture. We don’t restrict pornography to the scandalous display of ankles, we don’t restrict the power of corporations, and we don’t restrict guns to front loaded ball and power weapons.
All of the gun control rulings are just randomly made up shit with no basis on the Founding Father’s intent. Why would they be ok with semi-automatic weapons but not fully automatic? There is no Federalist Paper that extols the need to keep pulling the trigger.
The Founding Fathers’ intent on weapons was very clear and very stupid — privately owned and maintained weapons of war.
(They would have likely supported amending the constitution to limit this as weapons of war became increasingly terrible, but we have failed them)
@Gustopher: Cannons already existed at that point, but I doubt the FF thought that meant everyone had a right. To have one on their front porch.
@Gustopher:
This is an interpretation, but I do not share it. By that logic cannons fit (and would nukes).
@Gustopher:
@Grumpy realist:
@Steven L. Taylor:
The intent is rather evident in the historical context. remember the part of “a well regulated militia”? At the time armies were made up of a mix of volunteers and draftees, all of whom were expected to provide their own weapons. This was that intent going forwards, with a relatively small standing army, to be augmented in time of war.
If soldiers supply their weapons, then they must be free to own them and make use of them. At the time, too, there was much more need for guns, The US and the colonies it spawned from were mostly rural, a nation largely of farmers and ranchers. Guns were needed to protect livestock from predators, and to hunt for food.
None of this applies today. Hunting is largely recreational, and loss of livestock to predators must be infinitesimally small these days.
At the same time, the weapons are vastly different. Imagine attempting a mass shooting when you can fire two aimed rounds each minute.
But, you know, I don’t care whether the founders would have been fine with mass shootings or not.
@CSK:
Yeah, all of the Trump defenders seem to forget that he did it on national television, live, and followed up with actions that have already come out in disclosure in various court cases. There aren’t any questions about what he did; there are only questions about what can be done about it.
@DrDaveT:
Oh, I know. He insists he did nothing wrong, though, and the MAGAs believe him wholeheartedly.
@Steven L. Taylor:
No disagreement there.
And I think this gets to a fundamental contradiction in our structure of government that it would be great if our founding document let us address.
@James Joyner:
A view that has no basis in law or fact. There is literally no evidence for such a theory.
Nor is there any evidence that a criminal trial would be required. It certainly wasn’t in the past.
And the way it was applied certainly suggests it was self executing given how Congress did in fact remove the disqualification for people who had not been convicted of anything.
Did you read the Maine opinion? It really is quite compelling.