Heller v. D. C. is judical activism

Justice Scalia's Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, a notorious judicial activist, announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first source he consults is an obscure treatise, written seventy five years after the Second Amendment was ratified, which he apparently believes allows him to "rephrase" the Second Amendment.

The Second Amendment provides: "A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed." In interpreting this text, we are guided by the
principle that "[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning." United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

The two sides in this case have set out very different
interpretations of the Amendment. Petitioners and today's
dissenting Justices believe that it protects only the
right to possess and carry a firearm in connection with
militia service. See Brief for Petitioners 11-12; post, at 1
(STEVENS, J., dissenting). Respondent argues that it
protects an individual right to possess a firearm unconnected
with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within
the home. See Brief for Respondent 2-4.
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
"Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed." See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);

If Scalia can't interpret the Constitution without have first "rephrasing" it, he needs to resign from the Court.