The Burden of History: Justice Jackson’s Curious Call to Overturn Bruen

 

 

341 thoughts on “The Burden of History: Justice Jackson’s Curious Call to Overturn Bruen”

  1. The whole “unburdened by what has been” is a left-wing project, to erase history and start anew according to Communist principles. When Communists take power they sometimes try to reset the clock to Year Zero. The radicals of the French Revolution did that, as did Pol Pot in Cambodia. It’s dystopian. If we erase history and tradition, the field is open for the most evil impulses to grasp at power and control others in the worst possible way.

  2. KBJ has a valid point in raising seeing the “history and tradition” standard as giving Judges almost carte blanc discretion to pre-decide a case, and then dig up historical evidence to justify it. We saw Justice Alito do that in Dobbs. Any objective trip through colonial and early US history shows that abortificients were available and used in practice, though heaped on with scorn by those opposed to abortion. Alito ignored that phase of history, and cherry-picked law from the post Civil War era, when white supremacist legislators in the states took measures to try to bump up the white birthrate by banning abortion. This “picking and choosing” from the historical record works for ANY preconceived verdict a Judge wishes to reach — dig in the right places, and there you ‘ll find what you want.

    As far as Bruen, what NYS was doing (giving bureaucrats individual discretion over whether to license gun owners) was a gross form of overregulation, and deserved to be knocked down. It could have been ruled unconstitutional without invoking “history and tradition”, rather invoking the arbitrary and capricious powers claimed by NYS.

    Gun rights and responsibilities is a particularly awkward fit to long-ago history. In the 1780s, firearms were all hand made by craftsmen — there was no manufacturing as later invented by Henry Ford. Consequently, owning a long gun was an accoutrement of the well off, or a family heirloom handed down over generations. Militia captains exercised mature judgment over community-owned firearms stored in armories. A level of loose supervision prevented the use of these weapons by habitual drunkards, the immature, the mentally ill, the senile, and those men involved in domestic violence. This level of supervision is enshrined in the words “A well regulated militia being necessary…”

    Gun rights activists and industry lobbyists have been effective in removing most of a supervisory role over safe use of firearms. As a result, disturbed, immature young men regularly plot in secret to commit mass shootings — like the one by an 18-year-old yesterday in Chico CA, murdering 2 adults and injuring a child.

    The militia captain system was adequately decentralized and grass roots to not empower a wannabe dictator to confiscate firearms. That aspect of history ought to be appreciated. If supervision is adequately distanced from state control, then some form of adult supervision of youthful gun use is Constitutional. For example, requiring gun ownership under age 25 to require an OLDER ADULT SPONSOR who co-owns liability (criminal and civil) for misuse of the firearm. That approach advances the idea of responsible gun culture as something passed from the older generation to the younger one. It’s a practical solution to a complex problem, where the power and responsibility for safe gun usage is distributed widely among the citizenry, and unable to be concentrated in the hands of s single faction or governing administration. It’s a way to balance rights and responsibilities.

    1. Go read about the meaning of “well-regulated”. The meaning is not what you think it is.

      1. I did, and we’re both right. “Well regulated” meant “adequately disciplined, motivated and practiced to fight and win”. Disciplined meant that Militia Captains had the authority to take firearms away from militia members found to be using their issued weapon to commit crime. And they did disarm criminals. This supervisory role effectively prevented militias from evolving into organized crime gangs — that was one of the worries of the Continental Congress. The other was the worry that a “standing army” could pull a coup to overthrow civilian control.

        Both objectives were met. While petty crime abounded during the Revolutionary War and following decade,
        there wasn’t organized crime by armed groups. We can safely assume that was because any beginning steps toward organized crime were crushed early and hard.

        1. “We can safely assume that was because any beginning steps toward organized crime were crushed early and hard.”

          No we can not – organized crime has ALWAYS existed for the same reason – to work arround idiotic government laws on commerce.

          Criminals do not organize to beat people up and murder them. They engage in violence – because their business activities have been made illegal and are not only not protected by government but actively hindered.

          Do you THINK before making these claims ?

    2. “KBJ has a valid point in raising seeing the “history and tradition” standard and then dig up historical evidence to justify it. We saw Justice Alito do that in Dobbs.”

      Alito did not use history to form his ruling. He used his textual interpretation and then history as a check to make sure he wasn’t missing something.

      1. Of course the “history” quoted by Alito and referred to by Meyer the Liar is that of English common law going back to the 13th and 17th centuries.
        Alito cited the 13th century jurist Henry de Bracton who wrote that causing the death of a fetus is homicide.
        He also cited the writings of Matthew Hale, the Lord Chief Justice of England in 1671, who said that abortion is homicide. Hale also declared that a man cannot be found guilty of raping his wife because at the time of marriage the woman gave her husband permanent and irrevocable consent to have sex with her. Hale also presided over witchcraft trials and sentenced many women to death for witchcraft.

        If we are to appeal to this kind of “history” for modern jurisprudence regarding healthcare, then we also have to accept that disease is caused by an imbalance of blood, phlegm, yellow bile and black bile in the body, and that bloodletting removes these fluids to restore health. We would also have to accept that a sperm cell contains a miniature, fully formed human being called a “homunculus” that simply grows to maturity in the egg. We would also have to accept that the Earth is flat, and that the Sun revolves around the Earth.

        Meyer the Liar is an idiot living in a bizarre fantasy world, with his back firmly placed against the future and gazing wistfully into the past where women were subjugated as mere chattels of their husbands.

        1. The Grandiloquent Ignoramus without a name attacks a named person and screams “liar” without ever proving a single untruth. That is the exact boundary of this person’s intellectual capacity.

          My comment to pbinca was explicitly focused on colonial history and the text of the Constitution, not the ancient English common law you decided to rant about. Alito decided on a Constitutional basis and used history simply as a negative check, verifying that no such hidden right existed at the time of ratification. He referenced common law roots as standard legal analysis requires. It has absolutely no relevance to my response to pbinca. This intellectually bankrupt individual then tries to show how smart he is by constructing an absurd strawman about bloodletting and the flat earth because he lacks the basic legal literacy to understand originalist jurisprudence. If you had an ounce of genuine intelligence, you wouldn’t have to stray so desperately from the discussion.

          Final Grade: Dismembered Intellectually, Anonymous Coward and Pedestrian Troll.

    3. “Gun rights activists and industry lobbyists have been effective in removing most of a supervisory role over safe use of firearms.”

      Responsible individuals supervise their own gun ownership and use. Just as they supervise their own speech, driving, health care, . . .

      You use the actions of the irresponsible to rationalize usurping the rights of the responsible. That is the prescription for gutting *all* rights.

  3. Donald Trump is facing widespread public and media speculation regarding his health following a bombshell investigative report revealing that a highly well-connected 79-year-old mystery patient was granted unprecedented, early access to Eli Lilly’s unapproved next-generation obesity drug, retatrutide.
    On June 23, 2026, STAT News published an exclusive report detailing a highly unusual “compassionate use” exemption cleared by the FDA and Eli Lilly.

    The Patient Profile: The patient was identified only as a 79-year-old male as of April 2026—matching Donald Trump’s exact age.

    Medical Background: The patient reportedly suffered from “refractory obesity with obstructive sleep apnea and pulmonary hypertension” and had previously failed to lose significant weight on Lilly’s approved drug, tirzepatide (Zepbound)

    The High-Level Intervention: The application was personally arranged by a senior clinician at the National Institutes of Health (NIH) and drew intense interest from top federal health officials, fueling speculation of high-level political connections.

    When directly questioned by journalists, the White House, the FDA, and Eli Lilly all refused to confirm or deny whether the patient was Donald Trump.
    Medical ethics experts have questioned the arrangement because the FDA’s Compassionate Use Program is strictly reserved for patients facing immediately life-threatening illnesses who have exhausted all other options. Granting an individualized exception for obesity—a common widespread condition—rather than placing the patient into standard clinical trials is considered extraordinarily rare in the pharmaceutical industry.

    White House spokesperson Kush Desai directed inquiries to the Health and Human Services Department. In response to questions about whether Trump has obstructive sleep apnea and pulmonary hypertension, Desai said a White House memo detailing Trump’s most recent medical evaluation ‘covers this.’ The memo makes no mention of obstructive sleep apnea or pulmonary hypertension.
    This is a classic non-denial response. The White House refuses to deny the allegation, and instead deflects with this non-denial response.

    So what if Trump is that patient ?
    A patient with pulmonary hypertension typically develops right sided heart failure, which typically causes peripheral edema, which is manifested by swollen legs and puffy ankles.
    Sound familiar???

    If Trump is the patient here, there are only two possibilities.
    One, he used his power and influence to force Eli Lily to give him the medication even though he does not qualify for compassionate use, because he is not in imminent danger of dying.
    Or, two, he really is in imminent danger of dying, and therefore qualifies for compassionate use, and his doctors are lying in their reports of his medical condition.
    This would also explain why he has made 4 visits to the hospital in 18 months for a supposed “annual checkup”.

    1. His energetic schedule does not look like a person with Congestive Heart Failure.

      There are some 2 million US men who were age 79 in April ’26.

      1. He absolutely looks like someone with congestive heart failure.
        Morbidly obese, with profound peripheral edema beyond that typically seen in venous insufficiency.

        1. There may be 2 million men in the US who were age 79 in April ’26, but the question is, how many of them are under the care of a senior physician at the NIH in Washington DC?

          I would venture to say that there are very, very, few, perhaps only one.

        2. And you absolutely sound like someone with congestive brain failure.
          Look up the definition of morbidly obese. clown

        3. No he is not morbidly obese – he is barely overweight for his sex, height and age.

          he is more active today than Obama who is 15 years younger

    2. Ah, yes! The medical bombshell the annoyns roll out every few months when nothing else seems to stick.
      How many times have you made this claim only for it to go . . . nowhere?
      And without any evidence.
      How many times have you been right in the past?

    3. If one wishes to track Trump’s exercise tolerance, follow the frequency at which he plays golf. Pulmonary hypertension is a sequela of obstructive sleep apnea that has not been controlled with CPAP and which, as the pulmonary hypertension worsens, will make it increasingly difficult for him to play 18 holes of golf. Even with a cart. Plus, there are medications other than the GLP1/GIP medications that are more useful in treating pulmonary hypertension. Regardless of one’s political persuasion, the President, any President (yes, even Biden), is our most important citizen while they are in office. If Trump was granted access to retatrutide after failing tirzepatide, we should be grateful that the physicians caring for the President are smart enough to recognize it, and act.

    4. And Franklin “Depression-Causing” Roosevelt had poliomyelitis or Guillain-Barré syndrome, and almost everything he and his communist Congress did was unconstitutional.
      __________________________________________________________________________________________________________________________________________________________________________________________

      “If federal power is limited to the powers expressly delegated by the Constitution, then many of FDR’s legislative and executive initiatives lacked a constitutional basis because no enumerated power authorizes the federal government to regulate wages, hours, prices, production, agriculture, retirement pensions, or many other aspects of domestic economic life.”

      “Therefore, almost every legislative and executive act by FDR was unconstitutional.”

      – Gemini, Google AI

      1. Wait! Read it!

        That statement by Gemini literally includes “retirement pensions,” or Social Security, and “many other aspects of domestic economic life,” or Medicare, Medicaid, Obongocare, etc.

    5. I bet you expect to win $1B in the lottery too ?

      You have an amazingly long post to speculate about something that has near zero odds of being true and less than 1 in a million odds.

      Next time you make a bet – I will happy to take odds against you – easy money.

  4. To address: …
    “… Just last week, liberal Wisconsin State Supreme Court justices heralded Jackson’s approach in arguing for the restoration of race-based gerrymandering. …” -JT

    ‘race-based gerrymandering’ (IMO) is an avenue into multi-polar politics. In that it allows the Races (albeit to mean Ethnicities) to incorporate as Parties.
    Herein: the Republican Party, The Democratic Party, The White Party, The Black Party, The Latino Party, The Chinese Party, The Ethnic ____ Party … etc. The Dem’s are enabling this trajectory, whilst They realize it or not.

    If the Wisconsin State Supreme Court Justices by ‘Opening-the-Ethnicity-Field’ [Ethnic Based Districts], Then they could have argued it to modify the Wisconsin State Constitution, and later bring it to the SCOTUS as a test case.

    A.I. string: ( the US constitution for two party system ) [U.S. Federal Level Basis provided for comparison]

    The U.S. Constitution makes no mention of political parties. The Founders, including George Washington, actively distrusted factions and did not design a two-party system. Instead, the system evolved due to “first-past-the-post” (winner-take-all) voting, which naturally discourages third parties.

    The fundamental relationship between the U.S. Constitution and the two-party system breaks down into a few key realities:

    1. Absence in the Constitution
    • No mention: The document lays out the structure of the federal government, the separation of powers, and the election process, but it completely omits political parties.
    • Founder Warnings: Many Framers despised the concept of partisan groups. George Washington’s 1796 Farewell Address specifically warned against the “baneful effects of the spirit of party,” arguing that factions would lead to despotism and political gridlock.

    2. How the Framework Fosters a Two-Party System
    While the Constitution does not mandate political parties, its election mechanics heavily favor them:
    • The Electoral College: To win the presidency, a candidate must secure an absolute majority of electoral votes (270). Because it is nearly impossible for a third-party candidate to achieve this, the system compresses political competition into two major coalitions.
    • Single-Member Districts: For Congress, the country is divided into single-member districts where the candidate who gets the most votes (a plurality) wins the seat. This winner-take-all “first-past-the-post” system punishes third parties, as voters tend to align with the two major contenders to avoid wasting their votes.

    3. Historical and Modern Context
    • Early Emergence: Despite the Founders’ warnings, differing political philosophies (such as those between Alexander Hamilton and Thomas Jefferson) quickly created the nation’s first political factions.
    • Institutional Advantages: Over time, the two major parties (Democrats and Republicans) have entrenched their power through state-level election laws, such as restrictive petition requirements for ballot access.
    • Ongoing Debate: The History.com Article on Two-Party Systems provides further insight into why this dynamic exists, while political scientists continue to debate whether the constitutional structure implicitly locks the U.S. into this system.
    (See: https://www.history.com/articles/two-party-system-american-politics )

    Re.: Race (human categorization)
    Human Classification Historically, anthropologists and Western scholars categorized the human population into three major groups: Caucasoid, Mongoloid, and Negroid.
    https://en.wikipedia.org/wiki/Race_(human_categorization)

  5. This is the high flying flag of ignorance. Rather than put in the work to answer the question, she comes in from another angle she had pondered so as to hide her inability to follow the facts within the confines of the case. Bottom line: she is faking it. She has no business being in SCOTUS and everyone, including her knows it.

  6. Jackson was a political appointee who was appointed solely because of her race and sex. In short, she’s incompetent and should have never been a lawyer, much less a Supreme Court justice.

  7. Come on Man!! Any case Ketanji does not like is because RACISTS, SUPREMACISTS, AND MYSOGONISTS are running the court and the country!!! She knows progress can only come by tossing anything associated with the past into the woodchipper and then tossing the mulch into the ocean of despair!!!! Bah haha – Action Jackson opinions are what you get when you put a low IQ DEI Magna Cum Lately on the court! Viva the Merit-less-ocracy!

  8. While Justice KBJ is, as usual, wrong on the law this does not seem like one of her more egregious opinions. It simply treats “sifting through history to answer contested questions” as too difficult to be done properly. All this does is treat the Court’s primary job —- to use intent, precedent etc. to determine how a new question fits that framework —- as one that cannot be done well, and advocates for a more amorphous standard of determining issues. Just garden variety bizarreness from the perpetually entertaining Justice.

    1. She is more concerned about the “burden” on judges to accurately call balls and strikes than the burden on the people if judges could more easily decide cases according to current political fashion.

      Where you start often determines where you end up. If you start with the idea that limitations the Constitution imposes on governmental power are there and must be “discovered” and articulated by the judiciary, you end up believing history and tradition are important. OTOH, if you start with the concept that the Constitution is a programming language and ask “what is the easiest to implement?,” you end up rejecting history and tradition because they’re too much of a “burden” on judges to figure out.

      Besides which, in constitutional litigation the burden usually falls on the litigants to bring the pertinent history and tradition to the judge’s attention. With politically sensitive topics like 2A, there are any number of public interest firms that have tons of informaiton that can be included in a brief. Her premise that the judges is somehow all alone trying to dredge up the relevant info about history and tradition does not align with reality.

  9. KBJ is useful in saying, “Hey people, here’s how we’ll fundamentally transform America if we regain power.” It’s not stealth, it’s out in the open.

    The “living constitution” theory is just a way of claiming license to rewrite the document to fit your own policy preferences. I like my constitutions dead, they guarantee freedom better that way.

    1. Indeed. Additionally these folks seem to miss the fact that the philosophical worm always turns. What will they do if 50 years down the road ” Real Fascists” come to power. Then a new interpretation of the Constitution may well cause them major heart ache.

  10. It is evident based on the Federal Judiciary decisions coming from many District Court appointees, that the intent of Justice Jackson and her supporters is not to “pack the Court” with like minded Judges, it is to have the Federal Judiciary to be the ruler of our country. Eliminating the balance of power doctrine.

    1. Yes, attempting to amend the meaning and impact of the Constitution by Plaintiffs bringing cases to the Federal Courts, seeking inventive Judicial interpretations of Constitutional bare language taken out of historical context — this is a violation of Article V.

  11. The first thing on a dictator’s agenda after taking over a nation by force has always been the packing of the nation’s highest court. The packing of the court will then allow the elimination of the right to speak freely. A Department of misinformation soon follows. It was not long ago that a President with onset dementia proposed and acted to enforce both the packing of the court and a new department designated to police speech. These are and always have been the goals of the anointed elite.
    Diligence is not only required but is also a moral responsibility lest the shooting in the back of the head will once again begin.

  12. “Whoever uses the most-name calling is the winner of the debate!” This is fallacious. Only a moron would do something so fallacious.

  13. This is what is coming out of our law schools, as well as our med schools and our journalism schools. In law school students learn to “deconstruct” the laws in order to change them into what they THINK they should be. KJB is the future of legal “reasoning” and one of the most sickening aspects of her “jurisprudence” is the fact that she is arrogant, shameless and proud to be the lone dissent using new rules that only she seems to understand.

    1. Says the side that completely made up the idea that 2A is about an individual right to own a gun, and ignore the “well regulated” part of the amendment.

        1. “you might like to read “Understanding the Grammar of the Second Amendment””

          Or, she could read Lawrence Tribe, the Left’s go-to Constitutional expert of the last several decades, who, after studying the issue at length, was forced to publicly admit that he had been incorrect, and that the prohibition of the 2nd Amendment on the government infringing the right to bear firearms, does absolutely apply to individual Americans. Of course, stupid, dishonest trolls like “Sally” never allow actual facts to influence their opinions or conduct. I refuse to do the work, because I read that when it was first published on-line sometime around Y2K, but it was cited extensively on Jerry Pournelle’s Chaos Manor blog (arguably the 1st web blog) and I’m confident that any doubter could find it there, with a bot of searching.
          https://www.jerrypournelle.com/

        2. Lin,
          Thank you for pointing out Sally’s gross ignorance.
          I will bookmark that site for future reference when Sally displays her ignorance again.

      1. “. . . made up the idea that 2A is about an *individual right* to own a gun . . .” (emphasis added)

        Does the Left have any idea what the purpose is of the Bill of Rights? (Which, by way, includes 2A.)

      2. In addition to what lin states, and is VERY well reasoned, I would suggest the reading of the Declaration of Independence, specifically, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

        Notice the last two sentences. Thomas Jefferson understood that Governments tend to expand their power, and after a while becomes, as others have stated “tyrannical” and “intolerable”. After all, as the saying goes, “at best Government is a necessary evil, at worst, an intolerable one”. At that point, it is not just the right of the people, but he is claiming here, the duty of the people, to alter or abolish the Government. How can you do that without the means necessary?

        Now for a little history: Prior to 1934, there were NO Firearms regulations (the first major one being the National Firearms Act of 1934). If you wanted an automatic firearm, a gatling gun, a tank, or a military plane, you could purchase one. The only thing stopping you would be the cost. However, people like Al Capone led to these firearms regulations by “out gunning” the police. It could also be argued that these criminals only came into power due to the 18th Amendment and Prohibition, and if that had never been passed, we might not have needed the National Firearms Act of 1934 or the Federal Firearms Act of 1938 (regulating interstate shipment of ammunition and firearms).

      3. Well regulated means well drilled. Not “regulated” in 20th century terms. So the most that could be required is that citizens attend classes or drills. And those would be “at govt expense”.

        1. It means “disciplined, motivated and practiced to fight and win”. By way of discipline, those found to be using issued weapons to commit crime could be disarmed by the Militia Captain….after passage of 2A.

          The important points for the “history and practice” of 2A are:
          1. Militia Captains had the authority to take issued weapons away from the demonstrably irresponsible
          2. Govt. had no direct control over this highly decentralized form of firearms discipline, making it impossible for a police-state to disarm the People.

          1. If you have cites for point #1, I would be interested in reading the documents.

  14. I’m sure she could score higher on a GED exam than you could. Then it would be clear who the true moron is.

    1. Sure about that? We all know she cannot pass the biology part. She told us. Probably the rest of the science part too.

  15. Justice Jackson’s and the “living constitutionalist’s” concerns rise or fall on the Supreme Court’s ability to deal with the plane of time. In 1803 the Constitution was 13 years old, ratified in 1790. In that 13th year The Court decided in Marbury v Madison that the Constitution did not give it the jurisdiction written into the 1789 congressional Judiciary Act. The statute gave them jurisdiction to order mandamus relief to order delivery of outgoing President Adams’s midnight judicial appointment letters. That clinched the power of SCOTUS declare what the law is by deciding what the law is not. Could the political branches have changed the law? Yes. In the same constitutional amendment process as done for the 13th, 14th and 15th Amendments to the Constitution. Bruen was decided 230 years after ratification. It stands on the same legs as Marbury’s 13 years after ratification. The message of court packing and living constitutionalist’s is that SCOTUS can not decide what the law is after 230 years, but could after 13. The Framers told us better in the Constitution. Article Five.

    1. Not bad, but seriously over-worded. “Living Constitution” is very simply a 100% bullsh1t term that traslates to “whatever arbitrary rule we decide we want to enforce at this particular moment”.

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