Justice Scalia and Originalism in Constitutional Interpretation

In 1791 there was no understanding concerning the internet. Does this mean that the First Amendment can not be used to decide cases involving the internet?

I reject your premises. It said n meant "arms" = weapons that can be borne.

"Evolving standards of decency?" Sure sounds like a "living constitution" analysis to me.

It does, but Scalia's quotation marks clearly denote the term as somebody else's living-constitution analysis, not his own. Scalia then criticizes their analysis for being inconsistent on its own terms. (If evolving standards of decency are the benchmark, it's society's evolving standards, not those of the judges.) I don't think your quote implies that Scalia believes in living-constitution analysis. My guess is Scalia just plays along with it because he, unlike Thomas, also pays attention to precedent.

Those two views are irreconcilable -- Scalia has to pick one or the other, or else

"Evolving standards of decency?" Sure sounds like a "living constitution" analysis to me.

It does, but Scalia's quotation marks clearly denote the term as somebody else's living-constitution analysis, not his own. Scalia then criticizes their analysis for being inconsistent on its own terms. (If evolving standards of decency are the benchmark, it's society's evolving standards, not those of the judges.) I don't think your quote implies that Scalia believes in living-constitution analysis. My guess is Scalia just plays along with it because he, unlike Thomas, also pays attention to precedent.

Of course, Scalia is also a sinner, as most of us are. But in my opinion, his sins tend to be sins against originalism rather than sins of originalism. (Bush v. Gore is a good example of a sin against originalism. Gore should have prevailed because the US constitution puts the States in charge of elections, and the Florida Supreme Court had decided for Gore.

Instead, Bush won thanks to a super-stretched 14th-amendment analysis, of exactly the kind true originalists detest.)

Then Justice Scalia took audience questions. The first query concerned Bush v. Gore, and he repeated his usual mantra: “Get over it!” He did add, however, that “on the principal issue [of whether the Equal Protection Clause was violated], the vote was 7-2 — not even close.” The vote was 5-4 on the issue of remedy, which he described as “whether to give these people [a few more] weeks to sort out this mess” — during which the government would essentially be paralyzed, trapped in a state of limbo, unable to transition to the next presidential administration.

“The majority said, ‘Basta!’ And by and large, the county agreed.” (The “Basta!” line, which I hadn’t heard before, was met with a surprising amount of laughter from the Wesleyan crowd.)

SO... as a strict constitutionalist, you think the 2nd amendment only refers to muzzle loading arms, correct?

Or are you willing to change the meanings of that part of the Constitution?

Scalia's opinion in Heller does suggest that not all weapons are protected by the second amendment:

Quote:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’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.” 307 U. S., at 179. 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 militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. 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.

(emphasis added by me)

So you think I can legally posses Stinger missiles under the 2nd amendment?
And I can also possess a suitcase nuke?

wandeljw wrote:

In 1791 there was no understanding concerning the internet. Does this mean that the First Amendment can not be used to decide cases involving the internet?

No, because the speech is the same whichever way it's encoded---sound waves, ink on paper, or IP packets, it doesn't matter.

OmSigDAVID wrote:

I reject your premises. It said n meant "arms" = weapons that can be borne.

Bazookas and flamethrowers can be borne. Just to be clear, are you saying that we the people have a right to personal bazookas and flamethrowers? What additional distinctions besides "bearability" would determine that, if any?

EDIT: Wandel's quote from Heller clarifies it. The distinction is arms typically borne by lawful citizens by lawful purposes.

So then I can possess a suitcase nuke under your interpretation of the US Constitution?

The role of militia, also known as military service and duty, in the United States is complex and has transformed over time. The term militia can be used to describe any number of groups within the United States. Primarily, these fall into:

The organized militia created by the Militia Act of 1903, which split from the 1792 Uniform Militia forces, and consist of State militia forces, notably the National Guard and the Naval Militia. The National Guard however, is not to be confused with the National Guard of the United States, which is a federally recognized reserve military force, although the two are linked.
The reserve militia or unorganized militia, also created by the Militia Act of 1903 which presently consist of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia. (that is, anyone who would be eligible for a draft).

Scalia's problem is that he wants everyone to think that he's being a consistent originalist, even when he's employing a "living constitution" approach that he so frequently derides.

To that end, I don't see how one can be a "principled originalist" while compromising those principles.