> You may disagree with the constitutional basis for the decision and wish the second amendment to be abolished, but the decision was well stated and solid.
The decision, as written by the late Scalia, to create an individual right bears no resemblance to any historical or legal precedent. Acting as amateur linguist and etymologist, it is ironic that Scalia, a so-called Originalist, ignores the original meaning of the terms in the amendment.
>That’s a willful misinterpretation of the 2nd amendment that has been specifically rejected by the Supreme Court.
It was the correct interpretation of the 2nd Amendment as supported by the Supreme Court for two centuries until they changed their mind in 2008, and even then four justices dissented.
What the Constitution says and what Constitutional rights exist and in what form comes down to the subjective interpretation of the court, and as history has shown, even recently, that opinion can turn on a dime.
>It’s also contrary to many state constitutions, which provide an even more definitive individual, affirmative right to bear arms.
Those constitutions were either updated after Heller or else were unconstitutional prior to 2008.
> Scalia really put the historical scholarship work in on that one
I'm afraid not, and not by a mile. He based his decision on his unfounded and unsupportable belief that most Americans believed that self-defense was inclusive to the 2nd, based on nothing but what he thought, and he was wrong, because most Americans are not idiots, but even if he was right (which he definitely was not), the Supreme Court is not and not supposed to be a democratic institution swayed by the whims of alleged popular opinion.
In considering the 2nd Amendment, the Framers debated self-defense and intentionally left it out of the Amendment. Scalia knew this, being a strict Constitutionalist, probably personally reviewed the minutes of the Constitutional Congresses where it is very clear the Framers did not want self-defense inclusive to the 2nd. They did not want an armed citizenry. The 2nd only concerns militia and tyranny. The proper exercise of the 2nd looks exactly like Black Panthers surrounding the Alameda County Courthouse in Oakland, California in 1968. It does not look anything like Florida (and elsewhere) Stand Your Ground nonsense, nor Texans shooting kids in the back.
What Scalia did was criminal, bastardizing the 2nd, changing it from a selfless right to stand against tyranny into a selfish right to protect self and property. Self-defense is far more fundamental than the Bill of Rights and is superfluous there. If the right of self-defense comes from any document, it would be one far, far older than the Constitution. But it's really a natural right, older than writing, older than language. Self-defense transcends our species and is a right of all living things. The Bill of Rights does not give us rights we already have and have had since long before we even evolved into humans.
And self-defense was completely skew and unrelated to the issues of DC v. Heller. That portion of DC v. Heller will be struck down, eventually, as soon as its challenged under a balanced court, because Scalia stepped way, way beyond the bounds of the mandate of the Supreme Court to interpret the Constitution, instead literally adding meaning that was never there before, sidestepping the legal methods of amending the Constitution aka 2/3rds majority of both houses of Congress or state legislatures.
Scalia vandalized, gutted and diluted the 2nd Amendment. Prior to 2008, the 2nd was noble and great. After DC v Heller, it is worthless. DC v. Heller is just another assault on the Constitution, just like the suspensions of habeas and the 5th Amendment.
Gun owners don't need the 2nd Amendment. Hunters never did. The 10th Amendment was always where (nearly all) gun owners' gun rights derived and still do, through legislation by the States, as the Framers intended, abiding by the first 3 words of the 2nd Amendment, put right up front to underscore their importance, and that every gun owner loves to ignore or lie about their clear and literal meaning. The 2nd limits itself and allows the 10th to legally cement what has become a dirty word: regulation. "Shall not be infringed" was placed last, making it less important than and subject to regulation. And commas are important, and it is easier to understand the 2nd removing the clauses between them:
A well-regulated Militia shall not be infringed.
The "right of the people to keep and bear Arms" is "a well-regulated Militia and necessary to the security of a free State." Before Heller, and after that portion is struck down when the Court is inevitably balanced again, no personal right to bear arms existed nor will exist, respectively, except what the States grant under the 10th Amendment.
> At least in the United States, sadly that ship has sailed as SCOTUS precedent repeatedly emphasizes the 2nd Amendment as a purely individual right.
With the current court, yes, but that interpretation only dates back to 2008. It would be much less of a reversal than we just saw for a future court to find that Heller was decided in error, and unlike Alito’s pretense of research there’s far more historical precedent supporting the collective interpretation going back at least as far as what the people drafting the second amendment discussed when they did so, as well as two centuries of general agreement on that point.
> Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment?
Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided.
> what constitutes a true liberal originalist?
You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising.
I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites.
But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
> That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.
You are confusing originalism with textualism (there is an argument that the current Court’s dominant philosophy [or mode of rationalization, for the more cynical] is both originalist and textualist, but your particular argument is more of an appeal to textualism than originalism.)
>The supreme court has ruled that the second amendment protects an individual's right to own guns and that right cannot be removed by states.
That's what we discussed. Given what the constitution says, that ruling is BS.
The law and supreme courts are politics --not some clean, divine, body that comes with only just rulings.
"Liberty and justice for all", for example, if I'm not mistaken, was in there from the beginning, but the courts could not give a rats ass for slavery, segregation, etc, until they were forced to by popular protests.
So, that 2/3 of the congress is not much consolation either.
> I strongly disagree. I see this current court having extremely low legitimacy engaged in naked power grabs
Your disagreement doesn't have any effect on reality.
Care to back up your claims with actual evidence?
> stricken down a fifty year precedent
Is it somehow bad to strike down old precedents, regardless of content?
> told a state that they can’t enact their own concealed carry act
Is it somehow bad to tell US states that they can't do things that would violate the US constitution, which is explicitly meant to apply to all states?
> obtuse society-wrecking
Translation: "these rulings don't agree with my political positions" (so I'm going to use language that conceals my preference to suggest that they're bad).
> They shall go down in our childrens history as villains.
Not a constructive addition to the conversation, smells of emotional manipulation.
I was very clearly referring to the fact that if the 2nd amendment were to be taken as an intent to allow citizens to revolt against the government then it is not clear on what grounds the seemingly absurd corollaries of that, as a legal position, would be dismissed. Which you haven't addressed at all except to say "but it's not actually precedent yet!"
It is not - because the Supreme Court has very obviously in Heller not interpreted it that way. So I don't know of what value anyone can argue this was the intent because the body defining the law of the land and the interpretation of the constitution does not agree with you.
But even if we grant the SC is not the be all and end all, you still haven't managed to actually address why that position would be absurd? What use are firearms against a Federal government which, to take an extreme example, gives itself Dune-style shields for all officers and personnel, but not civilians. Why are limits on arms, actually suitable to overthrow the government - so say, maybe a whole lot of Javelin anti-tank missiles as they are currently proving useful - not within the remit of the 2nd?
Right, except for all the reasons it was outlined to be exactly that for 240 years before you came along to say it wasn’t. Perhaps try the Federalist Papers, Jefferson, and Adam’s writings on the topic.
You are free to disagree all you like, you are within all rights to call a majority decision wrong and the opinion of weasel words… your feelings change nothing.
The militia argument is completely dead. 2A is an individual right. End of story until that decision is overturned. You are 13 years late to be upset over it.
> Also, the decision is based on a single-paragraph long part of the constitution.
I mean, if you read the ruling, it’s based on a bunch of stuff. Your comment seems to me like a case in point—correct me if I’m misunderstanding your point.
> One of the respect-worthy things about Scalia (even Thomas) is that they believe(d) that what the Constitution says, should be followed.
As a mode of rationalization of why the Constitution should be read in a way which supports their ideologically preferences, yes. As anything more deeply meaningful than that; some evidence in Scalia’s case, less in Thomas’s.
> One of their fundamental differences with, say, the more liberal justices, is that you should not read new/updated rights into a document that says what it says.
That’s not actually a difference between them and most of the more liberal justices; they actually legitimately disagree on original intent.
> If on the other hand you say that justices should adapt to what the current interpretation of a document implies, then maybe it goes your way, but someone interpreting modern values differently might equally conflict with what you want.
Believe it or not, its just as easy for people trying to interpret “what did the document mean in the eyes of the original writers” or “what would this text be seen as meaning in the original context it was written” (originalism/textualism) to come to differing conclusions than each other. The idea that either originalism or textualism produces stability is…well, I mean, its inconsistent with the decisions the Supreme Court has rendered with originalist or textualist rationales.
>Do you think every Supreme Court, since the founding (gun regulation is that old), was wrong about gun regulation and the Constitution, and this particular Supreme Court was right?
It's worth noting here that past cases before the Court referenced the idea that blacks could be allowed to carry fire arms if citizenship (pre-civil war) was interpreted more broadly, and that that fact was a reason to restrict it. So, yes, the Court has certainly erred in the past ... multiple times. 2A has been recognized as an individual and enumerated right for a long time. It's somewhat an invention of modern media that it isn't an individual right, and lots of people have been summarily gaslit into thinking it has something to do with membership in a (state run) militia.
> And in the case that their decision clearly defies the Constitution,
How can anything “clearly” defy the US Constitution, when it is drafted in such vague and sweeping language? (Not just the original document, even moreso later additions such as the Bill of Rights and the 14th Amendment.)
If the framers of the document didn’t want to give SCOTUS such immense discretion to decide what it means, they should have written it with more details, precision, elaboration - which would have narrowed the Court’s hermeneutic freedom.
> The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right.
The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment.
This seems to be relevant for the rest of your thing about how bad laws were made...
> It's hard to imagine that any originalist text or intent would condone
You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable.
> The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers.
It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead.
> There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable.
This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.
>...Scalia famously pushed originalism, but even he essentially writes out slavery, Native American disenfranchisement, and the chattel status of women in the 18th century, and other originalists are even less consistent.
I am no legal scholar by any means, but wasn't Scalia's argument that if the people don't like the social contract (i.e. the constitution), the people should change it via amendments vs having judges change it? I think he would say he did not "essentially writes out slavery..." but rather the 13th, the 19th amendments etc. wrote those out of the constitution.
> And you would only take that approach as a judge in the United States if you believed that the Constitution was a nearly flawless document worth preserving in its original form.
Given that, despite the cases that get the most public attention at the highest levels, most judicial interpretation isn’t of the Constitution, that doesn't make sense; it also doesn't make sense otherwise, since the Constitution has had extensive (either from a textualist or an intentionalist perspective) radical changes within the perspective of originalism, so originalism is in no way incompatible with believing the 1789 Constitution needed major revision, even if one assumes that an originalist must be operating ends-first and looking to rationalize their desired end-state of Constitutional law, rather than honestly.
>It is widely thought that SCOTUS decides based on ideology and politics, and only justifies it with the text of the Constitution after the fact
I don't think that is the case and in fact I think you are getting it a bit backwards.
The justices have an ideology which forms their view on how to interpret the Constitution and there are some serious questions to be had on the Constitution. Enumerated vs implied powers, incorporation of the bill of rights, etc. Their ideology forms their views on these issues. Once they formed their view on these issues they believe that is the real meaning of the Constitution.
Their interpretation of the Constitution is then used to justify their rulings. It may look like they are doing the opposite, but that is because you don't understand their interpretation of the Constitution. They do tend to be decently consistent when you understand their positions on the Constitution.
>That's a circular argument: "The meaning of the words to the people who wrote the words doesn't matter because we don't think the original meaning is what governs today."
That's not circular. That's pretty much exactly what you do when you take a balancing approach to conflicting interests. Some part of the original meaning is often tossed out. It happens a lot in Speech cases, and (in my opinion) is happening more frequently with 4th Amendment cases.
>I think that's actually a bit of a strawman of the "living Constitution" position.
Maybe.
>Clearly, very smart people would not subscribe to a patently absurd idea like that.
It doesn't matter what we think very smart people would or wouldn't do. The constitution means what the Supreme Court says it means, and the justices themselves are free to interpret however they wish. The current bench contains a variety of approaches, some fairly divergent from originalism, which it sounds like you prefer.
At this point you're probably a little bit surprised to learn that I do ascribe to originalism as my preferred approach to constitutional law. I can appreciate the other approaches, but there's the slippery slope of making the constitution fit whatever it is that we're trying to accomplish today, and at that point we might as well be like the British again and have no written constitution. Constitutional positions aside, though, I'm not a huge fan of capital punishment, whether or not the 8th amendment permits it (it does).
The decision, as written by the late Scalia, to create an individual right bears no resemblance to any historical or legal precedent. Acting as amateur linguist and etymologist, it is ironic that Scalia, a so-called Originalist, ignores the original meaning of the terms in the amendment.
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