New Episode: Alcoholic Originalism
Landor and Hemani
After a brief vacation hiatus, the latest episode of Divided Argument, Alcoholic Originalism, is up:
The big opinions are starting to drop, and we're doing our best to keep pace. We first discuss Landor v. Louisiana Department of Corrections, which concerns religious liberty, the scope of Congress's power to create remedies against individuals under the Spending Clause, and whether there's any redress if government officials literally throw your rights into a trash can. We then turn to United States v. Hemani, where the Court found that a federal law barring gun possession by unlawful drug users violated the Second Amendment and revealed that some of the Justices are surprisingly open-minded about marijuana's role in American society.
An episode about one of yesterday’s opinions should be up soon too. In the meantime, as always, feel free to comment below!
I think the Landor assignment probably was to BK; he tried to write a statutory interpretation opinion, which wasn't plausible because of Tanzir; and therefore NG took over to write a constitutional opinion (which is likely what he was proposing at conference to begin with).
Re the THT test of Bruen, Sarah Isgur has raised an interesting point that there doesn't seem to be a lot of discussion on. Her point is that just because there wasn't a law around the founding or reconstruction that restricted guns in x or y way, doesn't indicate that the people in power back then didn't believe they had the ability to pass such laws. Maybe such circumstances never arose that required them to pass such a law.
I find the THT test to be an unworkable mess. Perhaps the Court is pushing it so hard so it can use a similar test for religious liberty cases once it overturns Smith?