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2d Amendment case: DC v. Heller

 
 
Reply Thu 26 Jun, 2008 10:33 am
Some preliminary thoughts on the supreme court's recent decision in District of Columbia v. Heller (.pdf), which marks the first time the court has held that the second amendment guarantees an individual right to bear arms.

Scalia, in his majority opinion, explains that the second amendment can be divided into a prefatory clause ("A well regulated Militia, being necessary to the security of a free State...") and an operative clause ("...the right of the people to keep and bear Arms, shall not be infringed"). Although Scalia admits "[l]ogic demands that there be a link between the stated purpose and the command," that link need only be explanatory. In other words, the prefatory clause clarifies any ambiguity in the operative clause, but it does not limit the right granted in the operative clause. Indeed, the right can go well beyond the prefatory clause.

At that point, the game is up. If the operative clause is not, in any significant way, constrained by the prefatory clause, then clearly there's an individual right to keep and bear arms unconnected with militia service. Scalia goes on for another 60 pages or so, delving deeply into the history of militias and weapons and such, but the textual analysis is really all that he needed. This could have been a ten-page opinion: the rest is mere window-dressing.

Scalia also writes (p. 8):
    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. [b]We do not interpret constitutional rights that way[/b]. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
(emphasis added) I'm glad Scalia finally recognizes that the constitution is a "living" document.

The majority opinion had to come to grips with US v. Miller, the only modern second amendment case decided by the supreme court. Miller held (or could be reasonably interpreted to hold) that the right to possess arms was constrained by the state's interest in maintaining a militia. Scalia, however, takes the approach that Miller only concerns "unusual" firearms, like machine guns and sawed-off shotguns -- the kinds of arms that law-abiding citizens normally don't possess. Per Scalia: "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Scalia clearly doesn't like Miller, and he goes so far as to criticize the briefs in that case as being inadequate. It seems that his distinction, however, between those guns that law-abiding folks don't usually own and those that they do bears little constitutional scrutiny, and is probably unworkable in practice.
 
Setanta
 
  1  
Reply Thu 26 Jun, 2008 05:47 pm
I'm sure that this thread will get lost in the welter of gunnut glee over what they see as (in the words of one of them) a victory against those who hate freedom.

Nevertheless, i was glad to see that you had commented.
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parados
 
  2  
Reply Thu 26 Jun, 2008 06:08 pm
Thanks for the comment Joe.

I haven't had the time to look too deeply at the ruling but an interesting note about "keep and bear arms" in the little scanning I did. If it is constitutional to keep arms and if "bear arms" doesn't have to be in context of militia that puts the possibility out there that no laws can be passed that restrict carrying guns. Yet Scalia states that carrying can be restricted in certain instances. (I don't recall what his term was in talking about schools, etc.)

No doubt this is going to lead a ton of litigation about what constitutes common weapon. What might be "common" if it wasn't already restricted?

Another interesting side note - The ruling doesn't preclude license requirement to "keep arms." That one should drive the NRA to fits. Licensing under this ruling doesn't lead to banning. It appears the court left the door open to rule on that later.
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joefromchicago
 
  2  
Reply Thu 26 Jun, 2008 06:25 pm
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Debra Law
 
  3  
Reply Thu 26 Jun, 2008 06:30 pm
Re: 2d Amendment case: DC v. Heller
joefromchicago wrote:

Scalia also writes (p. 8):
    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. [b]We do not interpret constitutional rights that way[/b]. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.


(emphasis added) I'm glad Scalia finally recognizes that the constitution is a "living" document.



I have observed on occasions too numerous to be a coincidence--when it serves his own agenda, he bends--although he will never admit it. His hypocrisy never ceases to amaze me. Perhaps he's just adhering to "originalism" in the old fashioned way: Lying.

Here's what Scalia said at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005:


Quote:
Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the "Living Constitution," judges did their distortions the good old fashioned way, the honest way - they lied about it. They said the Constitution means such and such, when it never meant such and such.

It's a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, "Oh yes, the Constitution didn't used to mean that, but it does now." We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: "The Constitution is a living document." You know, it morphs.


http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm
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Joe Nation
 
  1  
Reply Thu 26 Jun, 2008 06:31 pm
Scalia has revealed again that his "originalist" stance on the Constitution is nothing but blather. A wonderful thing to muse about in speechs or in interviews, but very easily dropped or logically twisted into meaningless paragraph after paragraph when the situation is deemed necessary.

I was pretty happy, really, when I heard that Scalia was going to write the opinion because I've believed him when he has said on numerous occasions that the only way to view the Constitution is how the writers wrote it. There would be no way anyone could find a way to disconnect the leading phrase from it's following one, as the Founders wrote it after all.

So he just decided to be dishonest.

Joe(that weasel)Nation
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joefromchicago
 
  1  
Reply Thu 26 Jun, 2008 07:06 pm
It's pretty clear from Scalia's many comments on the issue that his position on the "living constitution" is nothing but a strawman argument. For Scalia, an interpretation based on the "living constitution" is simply any interpretation that he doesn't like. His opinions, however, make it quite clear that he believes in a "living constitution" almost as fervently as the most liberal of justices. For instance, in Kennedy v. Louisiana, where the court held that the eighth amendment prohibited capital punishment for rape of a child, the dissent, authored by Alito and joined by Scalia, never once mentioned the fact that rape was a capital crime at the time of the adoption of the eighth amendment. Certainly, under a strict originalist interpretation of the constitution, that would have been decisive, but Alito (and Scalia) take for granted a "living constitution" perspective toward the eighth amendment. And now it is equally certain that Scalia has a "living constitution" view of the second amendment.
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fishin
 
  1  
Reply Thu 26 Jun, 2008 07:07 pm
parados wrote:
No doubt this is going to lead a ton of litigation about what constitutes common weapon. What might be "common" if it wasn't already restricted?


I doubt there will be a "ton" of litigation. I suspect a few small cases and things will sort themselves out fairly quickly. One of the long-term benefits I forsee is the elimination of decorative items being used to define what is or isn't "common". I think when the cases do start hitting the courts, the courts will look more at mechanical functionality and lethal effects than decorative configurations in their decisions. As a result, IMO, any gun control measures that actually do survive court tests will be those that are more likely to actually be effective.

Quote:

Another interesting side note - The ruling doesn't preclude license requirement to "keep arms." That one should drive the NRA to fits. Licensing under this ruling doesn't lead to banning. It appears the court left the door open to rule on that later.


It raises a lot of questions with regards to licensing. Now that there is a clear ruling of an individual right can the state mandate training, fees, testing, etc.. to obtain your license? If the courts follow the precedent of voting, for example, then the answer will likely be "no". It also will pretty much kill the idea of local police determining who can and who can't have a license. As an individual right the local police will have a fairly high hurdle to prove there is justification for denying someone their license. Pretty much any state that does issue licenses will be forced to adopt a "shall issue" policy. (unlike voting however, the states are likely to be able to demonstrate a "state interest" in maintaining some of this stuff. The courts will have to decide how high of a bar the states will have to reach in doing so and those cases are likely to end up back at the USSC down the road.)

All of those together makes me wonder if states will actually find it just isn't worth their time/money to bother with licensing at all.

A by-product of this ruling will also be that any attempt to regulate/tax licenses and/or ammo in an attempt to limit a person's ability to exercise this right won't be likely to pass muster.
Brandon9000
 
  0  
Reply Thu 26 Jun, 2008 07:39 pm
As I've said in other threads here, the Bill of Rights in general seems to be an attempt to place restrictions on what the government may do to citizens, and there is no reason to suppose that the 2nd Amendment has a different intention. The right to speak, assemble, be free from unreasonable searches, the right to refuse self-incrimination, etc. are all individual rights.

Also, in my opinion, the 2nd clause of the amendment is crystal clear when it says that the right of the people to own and bear arms may not be limited. It seems to me that even if the amendment were phrased:

Owning guns is awful and so the right of the people to own and bear arms shall not be infringed

it would be an odd choice of conflicting ideas, but the statement that the government can't infringe on the peoples' the right to own guns would still be clear. I feel that the first phrase is there to give an example. Also, to state that a militia may arm itself would be an unnecessary redundancy, since the mere existence of a militia implies that it exists to provide armed protection.

I strongly suspect that the Founders thought that the existence of the inherent right to personal liberty implied an inherent right to self defense, including the right, should the occasion present itself, to defend oneself agains a tryannical government.
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parados
 
  2  
Reply Thu 26 Jun, 2008 08:00 pm
Of course, that means you have to define "people" Brandon.

People isn't restricted to "citizens" or the founders would have said as much, so that means that non citizens (terrorists) on US soil are constitutionally allowed to carry guns.

What about felons? Are they no longer "people" if they have been convicted of a felony? Wouldn't it violate the "cruel and unusual punishment" if a felony removed your personhood? I would love to see Scalia argue that point.
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joefromchicago
 
  2  
Reply Thu 26 Jun, 2008 08:24 pm
Despite Scalia's extensive historical research, he seems to have missed something potentially important. Regarding the scope of US v. Miller, he states:
    We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. ... [i]Miller[/i] said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
There's just one problem with this analysis: Miller upheld a federal law prohibiting the possession of sawed-off shotguns, yet such weapons (or their equivalents) were "in common use at the time" of the adoption of the second amendment. A blunderbuss, for instance, "is a muzzle-loading firearm with a flared, trumpet-like barrel which discharges lead shot upon firing. It is a kind of fowling piece or shotgun." Like a sawed-off shotgun, it has a barrel shorter than that of a rifle and is meant to be fired from the hip rather than from the shoulder. And it was even used by soldiers in the American War of Independence.
    General George Washington wrote to the Board of War on April 4, 1779, stating: "It appears to me that Light Blunderbusses on account of the quantity of shot they will carry, will be preferable to Carbines, for Dragoons, as the Carbines only carry a single ball especially in case of close action."
So if Miller truly stood for what Scalia now says it stood for, then the decision should have gone the other way. The supreme court should have found in favor of Miller, because he was carrying around a type of weapon that would have been in common use at the time of the second amendment's adoption. Indeed, he was carrying around a type of weapon that probably would have been used by the military at that time.
parados
 
  2  
Reply Thu 26 Jun, 2008 08:33 pm
It is interesting that as an "originalist", Scalia thinks Miller should have been decided based on what was common at the time of Miller instead of what was common at the time of the writing of the 2nd.
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fishin
 
  1  
Reply Thu 26 Jun, 2008 09:07 pm
joefromchicago wrote:
There's just one problem with this analysis: Miller upheld a federal law prohibiting the possession of sawed-off shotguns, yet such weapons (or their equivalents) were "in common use at the time" of the adoption of the second amendment.


I think you are reading something into Scalia's comments that isn't there. You found that line down near the very end of the decision but he very clearly discusses Miller much earlier and covers the bases. The "common use at the time" Scalia is referring to isn't at the time the 2nd Amendment was passed. Short-barreled shotguns weren't in common use at the time of the Miller ruling. He was referring to the statement from Miller where they specifically said "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

The blunderbuss had long faded from use by that point. References I can find show the last of them were produced almost 100 years before (the early 1840s) Miller was decided.
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fishin
 
  1  
Reply Thu 26 Jun, 2008 09:34 pm
parados wrote:
It is interesting that as an "originalist", Scalia thinks Miller should have been decided based on what was common at the time of Miller instead of what was common at the time of the writing of the 2nd.


Why is that interesting and what does being an originalist have to do with it??
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Joe Nation
 
  1  
Reply Fri 27 Jun, 2008 05:01 am
Justice Scalia is an originalist, fishin, someone who purports to examine the Constitution as a static document, someone who makes decisions on Law based on what the Founders wrote in it's original form, which is why, for example, Scalia says you have no right to privacy (it's not spelled out, is it?)

But here, as elsewhere and in other times at his convenience, the good justice has decided to use a magic marker over the initial phrase of the Second Amendment, ignoring the original words. My God, the Constitution IS a living document, said Tony.

Joe(Talk about activist judges all you want, it's the phonies who I dislike.)Nation
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Brandon9000
 
  0  
Reply Fri 27 Jun, 2008 05:10 am
parados wrote:
Of course, that means you have to define "people" Brandon.

People isn't restricted to "citizens" or the founders would have said as much, so that means that non citizens (terrorists) on US soil are constitutionally allowed to carry guns.

What about felons? Are they no longer "people" if they have been convicted of a felony? Wouldn't it violate the "cruel and unusual punishment" if a felony removed your personhood? I would love to see Scalia argue that point.

Let's take the The First Amendment as an example. It was intended to prohibit government from passing laws against the expression of opinions. That was the apparent intention of the men who wrote it. The fact that they say "shall pass no law" almost certainly doesn't mean that the Founders intended to permit someone to yell "Fire!" in a crowded theater. That is, if interviewed, I'm sure that Madison et al would have said that such a prohibition was reasonable and not a violation of the amendment's intention. He would, though, have likely said that a law prohibiting disagreement with the government is a violation.

The amendments in the Bill of Rights express in a sentence or two a general intention, with the expectation that the courts will use common sense in applying them. The second amendment expresses the idea that the government may not prohibit the posession of arms. It should be interpreted as meaning "within the bounds of common sense," but it may not be interpreted as meaning the exact opposite of what it says.
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joefromchicago
 
  1  
Reply Fri 27 Jun, 2008 06:57 am
fishin wrote:
The "common use at the time" Scalia is referring to isn't at the time the 2nd Amendment was passed. Short-barreled shotguns weren't in common use at the time of the Miller ruling. He was referring to the statement from Miller where they specifically said "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

I don't read the opinion to be saying that at all. Here's what Scalia says starting at p. 52 (emphasis added and internal citations omitted):
    We think that [i]Miller[/i]'s "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [b]The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militia men and weapons used in defense of person and home were one and the same."[/b] Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read [i]Miller[/i] to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right. We conclude that nothing in our precedents forecloses our adoption of the [b]original understanding of the Second Amendment[/b].
In Scalia's opinion, there are absolutely no references to the kinds of weapons commonly in use in the 1930s, but there are references to the "traditional militia" and the weapons commonly used "in the colonial and revolutionary war era." Furthermore, Scalia states (p. 55) that "the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."

My reading of Heller, therefore, is that the second amendment protects the right to bear the kind of arms that were used by the people for self-defense and militia service at the time the second amendment was adopted. This reading accords with Scalia's later statement (pp. 55-56) that the right to bear arms is not altered by changes in technology:
    It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
The only way to make sense of that statement, then, is to conclude that the amendment protects the right to bear the kind of arms that were commonly used at the time of the amendment's adoption.

Of course, if your interpretation is correct, then Scalia has a different problem. If the amendment protects the right to bear the kind of arms that are commonly owned today, then Scalia has to explain how that interpretation fits with his originalist take on the constitution.
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Setanta
 
  1  
Reply Fri 27 Jun, 2008 07:00 am
Brandon9000 wrote:
Also, in my opinion, the 2nd clause of the amendment is crystal clear when it says that the right of the people to own and bear arms may not be limited. It seems to me that even if the amendment were phrased:

Owning guns is awful and so the right of the people to own and bear arms shall not be infringed

it would be an odd choice of conflicting ideas, but the statement that the government can't infringe on the peoples' the right to own guns would still be clear. I feel that the first phrase is there to give an example. Also, to state that a militia may arm itself would be an unnecessary redundancy, since the mere existence of a militia implies that it exists to provide armed protection.

I strongly suspect that the Founders thought that the existence of the inherent right to personal liberty implied an inherent right to self defense, including the right, should the occasion present itself, to defend oneself agains a tryannical government.


This is a pretty typical and rather tired conservative argument peculiar to those who obsess over the idea that no one should be able to restrict gun ownership. The first clause of the second amendment does not say that a militia may arm itself. Article One, Section Eight, treating of the powers of Congress reads, in part:

(Congress shall have the power) To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In United States versus Miller, the Court states that the second amendment can only be interpreted in the context of that portion of the constitution. It appears that this must long have irritated Scalia, who seems to think that the second amendment should only be interpreted in light of his personal political agenda.

The United States government in the first century of its existence produced muskets and rifled muskets in quatities which far exceeded the most extravagant claim one could make for necessarily arming the regular army, which remained until the time of the Mexican War (1845), a very small organization. For example, 70,000 of the Model 1795 Springfield musket were produced between 1795 and 1812 when a new model was adopted. The entire enlistment of the United States army from 1787 to 1845 (beginning of the Mexican War) was not half that number--and at the height of its expansion for the Mexican War, the entire United States Army, including volunteer organizations and militia activated to serve in that war, did not exceed 35,000.

Clearly, in the beginning, at least, not only did neither the framers nor the government envision the militia providing their own arms, it certainly looks as they went to considerable expense to provide arms for the militia.

I consider your arguments without merit.
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fishin
 
  1  
Reply Fri 27 Jun, 2008 07:48 am
joefromchicago wrote:
fishin wrote:
The "common use at the time" Scalia is referring to isn't at the time the 2nd Amendment was passed. Short-barreled shotguns weren't in common use at the time of the Miller ruling. He was referring to the statement from Miller where they specifically said "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

I don't read the opinion to be saying that at all. Here's what Scalia says starting at p. 52 (emphasis added and internal citations omitted):
    We think that [i]Miller[/i]'s "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [b]The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militia men and weapons used in defense of person and home were one and the same."[/b] Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read [i]Miller[/i] to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right. We conclude that nothing in our precedents forecloses our adoption of the [b]original understanding of the Second Amendment[/b].
In Scalia's opinion, there are absolutely no references to the kinds of weapons commonly in use in the 1930s, but there are references to the "traditional militia" and the weapons commonly used "in the colonial and revolutionary war era." Furthermore, Scalia states (p. 55) that "the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."

My reading of Heller, therefore, is that the second amendment protects the right to bear the kind of arms that were used by the people for self-defense and militia service at the time the second amendment was adopted. This reading accords with Scalia's later statement (pp. 55-56) that the right to bear arms is not altered by changes in technology:
    It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
The only way to make sense of that statement, then, is to conclude that the amendment protects the right to bear the kind of arms that were commonly used at the time of the amendment's adoption.

Of course, if your interpretation is correct, then Scalia has a different problem. If the amendment protects the right to bear the kind of arms that are commonly owned today, then Scalia has to explain how that interpretation fits with his originalist take on the constitution.


I still think you are reading it wrong and I don't see how my reading of his words creates any issues with his being an originalist. It is the right to own firearms that carries the originalist meaning. You are trying to extraoplate that into the actual type of firearms themselves which the Contitution is entirely silent on. Scalia doesn't have to explain how his interpretation fits with an originalist take because the Constitution itself is silent as to the type of firearms.

As you quoted from Scalia "the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.".

It appears fairly clear to me that he reads the laws regarding the militia at the time the 2nd Amendment was passed was expected to own and bring weapons that were "in common use" at that time. The same reading carries over to the application of Miller where the short-barreled shotgun is contrasted to firearms "in common use" at the time of that decision and his decision yesterday which carries over to firearms "in common use" today.

The right that is enumerated within the Constitution is maintained regardless of what firearms are "in common use" are contemporary to the time.
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parados
 
  2  
Reply Fri 27 Jun, 2008 08:02 am
If the only requirement is what is "common at the time" then weapons that once were covered but are no longer common would lose their protection and new weapons could be banned before they become common so never gain protection. Congress could lock in the present weapons with legislation. I doubt that was Scalia's intent but it certainly makes it possible to do and goes directly against what you say the founders intent was.
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