Thomas Khun, Revolutions and Legislatures

[command_liner]

Gents, those that have read Khun's book "The Structure of Scientific Revolutions" (1962), has it occured to you that something parallel is happening with the concept of law, and the creation of law? Early on Hamilton had it right
"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow."

Khun invented (or at least popularized) the idea paradigm shift. This is where the way of doing something stops working in some cases, then there is a change were a new way of doing things happens. When Pelosi came up with the description We have to pass the bill to find out what is in it, that was perhaps the first popular example of legislators passing a bill without any concern about what the bill says, and if the bill is even somewhat constitutional. Sure, the California legislatures had long been (and still do) completely ignore the 2nd Amendment. But today in CA, MA, WA, OR, NY, IL, MD and a few other states the legislative bodies pass bills and the executive signs into law complete rubbish, without regard to the constitutionality (state or federal). When did this become a thing?

As late as the year of my birth it was fairly common to have a bill introduced and explained how the legislature had the power under *some specific provision* of a constitution to pass a law. This practice is now extinct.

Equally as extinct is the concept that the oath of office has any meaning at all. Can a legislature act without regard to any constitution and follow his oath to uphold the constitution? Probably not.

There is one other piece of the puzzle -- why does this work in the courts? How is it that obviously unconstitutional laws are passed, and the courts wait to hear cases brought, and then delay for two decades? There is an agreement by the courts that the laws passed by the legislature and signed by the executive are presumed constitutional. This practice *should be* extinct. There is no constitutional mandate that the judicial branch should show deference to the other branches in the creation of law. Gun laws are the first and most obvious example of why.

Getting back to Khun, has there been a sort of structured legislative revolution? The paradigm of law seems to have changed. The practice of law is not what it was.

 

[Deleted member 16735]

I don't think there is any new paradigm, the law has always worked like this. The law isn't a math problem, it's fake and it's only as good as it's enforcement i.e. those in charge can choose to enforce things on one group of people and not another and the law becomes de facto not the law. For instance, wage theft is estimated at 50 billion per year in the US which is the exact amount that shoplifting is estimated at. Yet, one group can end up with criminal charges while employers at worst have a civil suit, generally with no penalty except paying what they originally owed.

There's a ton of examples of the supreme court putting very distinct limits on firearms which many here would call "infringement". Going back to United States v. Cruikshank (1876) the court decided that the 2nd amendment only applied to federal laws and did not prevent the states from regulating or banning firearms, in this case banning freed blacks from owning firearms. Presser v. Illinois (1886) despite what most peole think is an obvious interpretation of the 2nd amendment, citizens do not have the right to form militias without the state allowing it. U.S. v. Miller (1939) the court decided that certain arms were not protected by the second amendment, in this case short barreled shotguns. Heller (2008) people have a right to firearms but that right is not unlimited and "dangerous weapons" can be regulated. Bruen (2022) concealed carry is legal but licensing schemes are constitutional with no provisions to prevent California's 2k$ ccw fee in certain counties.

The reality is that even the recent cases from Heller forward that expanded gun rights in certain ways also expressly allow quite a bit of regulation, there has never been a supreme court decision that in any way resembles what a F- ton of gun owners think the 2nd amendment gives them rights to i.e. "shall not be infringed". In addition to supreme court cases, don't forget the federal assault weapons ban in the 90s that also banned "standard capacity magazines". Clinton was president but James Brady of Brady bill fame was a Republican who worked for and was shot with Ronald Reagan who also supported the Brady bill and assault weapons ban. I feel like many people just assume that AR15s have always been ubiquitous but it's only been 10 years since they really became popular for civilian use.

This is just firearms, there's any number of examples of the courts and legislatures deciding one thing or another in ways that someone thinks is unconstitutional. There's literally nothing that is "obviously unconstitutional" because the law is fake and made up and someone can always form an opinion to support whatever they want.