Using Scalia's reasoning regarding interpreting the Constitution by originalism

[Uncle Joe]

the only arms; anyone should be able to possess due to the Second Amendment, would be muskets.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9167306

Scalia and Breyer are frequent debating partners, and Breyer has written not one but two books critiquing originalism, the method of constitutional interpretation most associated with Scalia. It says the best way to interpret the Constitution is by looking at the meaning of the words at the time they were written.

[zipplewrath]

1. This will get moved soon

But before it does, no it wouldn't. It would included cannons as well. There were privately owned weapons of all sorts.

However, pot would be legal, as would abortion, because both were legal and unregulated at the time of the writing of the constitution. (As were alot of things like gambling and prostitution).

[Uncle Joe]

4. I agree with you regarding the cannons and other arms of that time period as well.

The point of my OP isn't actually about the right to bear arms, it's about the logic of Supreme Court Justices using "originalism" as their guide in determining modern day cases.

[zipplewrath]

5. Originalism falls on many angles

Many of the folks involved in the passing and adoption of the constitution were also involved in the writting and passing of the Aliens and Sedition Acts. Truth is, the entire concept of Judicial Review upon which sits most of the activity of the Supreme Court these days was never even considered by the originators. It was created by the court itself. (Marbury vs. Madison). So "originalism" is extremely difficult to define in any objective sense. It relies almost entirely upon what we "think" they would have thought, and at what time.

But even more to the point is that we now have 27 amendments to the constitution. They change the very nature of the document, especially specific ones such as several of the first 10 and others such as the 14th. There is precious little "original" at all anymore. It is not a document "fixed in time" but a collection of ideas over time that brought us to here. We can only judge it here in this time.

[Uncle Joe]

7. Yes, I view the Constitution as a living document, whereas Scalia and the

"originalists" would harden it to the point of riga mortise.

However I do believe many of those folks involved in the passing and adoption of the Constitution also had a sense of societal evolution even though Darwin hadn't been born yet.

They knew and expected it to be amended over time.

[Hosnon]

13. Hamilton discussed the concept of judicial review in Federalist No. 78. nt.

[no_hypocrisy]

2. And 5 votes by African-Americans would be counted as 3.

[uncommon]

3. Not strictly true as AA voting rights were actually amended to the Constitution.

Amendments count.

[suston96]

6. By all means, look at the meaning of the words.....

....when they were written, but that doesn't mean what they meant back then applies now.

Did I say that clearly? Oh wait.

I am not sure what I meant when I wrote those words three minutes ago.

The absurdities from Scalia and his ilk never stop. Betcha he took naps during English Comp 101.

[Uncle Joe]

8. I believe Scalia and his ilk only use those absurdities as a means

to further their own political ideology, but when strictly applied "originalism;" bucks their interests, they drop it like a hot potato.

I don't have the same charitable view as Justice Breyer does in the column of the OP re: Scalia's motives.

[Bucky]

14. Thank you. His ruling in Gore v Bush is a perfect example.

He flipflopped then added on "this particularly decision doesn't count as a precedent, BTW - LOLs" (altho I could be paraphrasing here)

[JoePhilly]

23. The entire GOP behaves the same way .... they are "strict constructionists" ...

when it suits them, yet they also want to change the 1st Amendment, the 14th ... so on.

They are full of %$#$.

[Fuzz]

25. No doubt

[Octafish]

9. Tony the Fixer earned his pay on that Bush v Gore pretzel logic.

This one time only and only in this case and it's now water over the deck so get over it or else and, while we're at it, vaffanculo.

[Uncle Joe]

11. Whereas they determined that different voting methods didn't violate the equal protection clause,

but counting the votes did.:evilfrown:

I have no doubt if Scalia had been alive in the early 19th century he would have easily decided African Americans were 3/5 of a person.

[Octafish]

15. Heard Bobby Kennedy Jr. talk about justus Scalia...

...in Detroit a few years back. Seems Scalia's papa, according to RFK Jr., was a big wig in the American Nazi Party, pre-WWII.

[Tsiyu]

10. Scalia is grasping at straws

to justify his sucking up to the NeoCons (which seems to have had the effect of negating the separation of powers - a concept distinclty set out in the Constitution.)

But on its face, the premise of originalism is laughable and worthy of humiliation.

It would be like a learned physician eschewing modern medicine for leeches and cod liver oil. Or your mechanic trying to put horseshoes on your car. Or like starting a small twig fire in your microwave to heat up your coffee.

Scalia is desperate and knows he's guilty of using his position to enrich himself and his buddies, and I'm sure THAT's the real crux of his rationale.

[Uncle Joe]

12. I agree and those are good analogies, Tsiyu.

But on its face, the premise of originalism is laughable and worthy of humiliation.

It would be like a learned physician eschewing modern medicine for leeches and cod liver oil. Or your mechanic trying to put horseshoes on your car. Or like starting a small twig fire in your microwave to heat up your coffee.

[Tsiyu]

16. Thanks Uncle Joe

I wish "Scabia" would retire already....

[Enthusiast]

21. You have nailed it!

And they want to take us back to the 18th century. Given the opportunity they will do just that.

[malaise]

17. Nice post Uncle Joe

Thanks :hi:

[Uncle Joe]

24. Thanks for the thanks, malaise.

:hi:

[defendandprotect]

18. Agree ....

[Nevernose]

19. Marbury v Madison isnt in the Constitution

Scalia would be out of a job, or at least be a lot less influential, if it weren't for judicial activism by liberal judges.

[Qutzupalotl]

20. I've heard Thom Hartmann make this argument.

Great minds think alike.

[Enthusiast]

22. K&R Nice! nt

[Winterblues]

26. Also what exactly does it say about maintaining a Standing Army?

:shrug:

[Uncle Joe]

27. Article 1 Section 8

#13 To provide and maintain a navy.

There is no mention of maintaining a standing army, only the power to raise, regulate and fund an army.

Using Scalia's logic, of originalism, a standing Army would be unConstitutional.