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04/13/2021

Nelson Lund on Young v. Hawaii
Michael Ramsey

At Law & Liberty, Nelson Lund (GMU - Scalia): Fake Originalism and the Right to Bear Arms.  From the introduction: 

Several years ago, the Ninth Circuit held that the Second Amendment does not protect the right to carry a concealed weapon in public. In its recent 7-4 decision in Young v. Hawaii, that court has now taken the next and final step: “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” Notwithstanding a couple of strangely delphic suggestions that the right to bear arms might be something other than the right to carry them in public, the court deleted that right from the Constitution.

This aggressive exercise of judicial power does not rest on the once-fashionable “living Constitution,” a fiction through which judges may amend the written Constitution to conform with their own policy views. At least not openly. Young is instead based on fake originalism.

Fake originalism comes in several varieties, including living originalismcommon-good originalism, and living textualism. All of them wrap judicial usurpation of the authority to amend the law in the respectable guise of originalism. Many questions about original meaning are honestly hard to answer because the relevant evidence is sparse, equivocal, or both. But some arguments are so illogical and bereft of supporting evidence that they constitute a stealth form of living constitutionalism. The Young opinion, more than a hundred pages long, is a massive exercise in fake originalism.

The majority opinion was written by Judge Jay S. Bybee, a George W. Bush appointee who is an accomplished legal scholar. He has taught and published widely in the field of constitutional law, and his academic literary skills are on full display in Young. The court’s treatment of the Constitution cannot be attributed to incompetence, carelessness, or an inability to understand Judge Diarmuid O’Scannlain’s crushing dissent. . . .