Vegas

There is a 2,500 word discussion of the prefatory clause in the opinion, so I don't see how that qualifies as ignoring the language. I'm not sure you've supplied an answer as to what you think the grammatically correct way to read the amendment is. Let's go back to my example of wearing blue. Do you disagree that those two provisions would impose the same legal obligations?

Something I said above also bears repeating. I am willing to accept that textualism is not determinative of meaning in all cases; there is sometimes room for interpretation and even discretion. Thus, I have no problem acknowledging a risk of "subjective misuse." Nevertheless, I find it absolutely mind-boggling how you can contend that textualism imposes a *greater* risk of subjective misuse than a philosophy that *affirmatively proclaims* that subjective interpretations are not merely a risk, but indeed a desirable end goal. (And if you are tempted to believe that characterization is a straw man, consult "The Liberal Theorists of Constitutional Revisionism" section of Bork's Tempting of America -- I'm not overstating things.)
 
the substance of the arguments here are often not well understood by me as i have no experience or education in this field of study, but it is fascinating to try to follow along and see what i can pick up. hats off to the contributors.

back to a question that is at my level--and i realise that there will likely be more than one opinion.

should scalia's originalist approach to the 2nd amendment mean that we are restricted to having the right to have and bear flintlocks such as they were at the adoption of the bill of rights?
 
Thorough article on textualism and purposivism: https://blogs.cornell.edu/marmor/fi...urposivists-ColumbiaLawReview2006-1odme75.pdf

The reference to the "no dogs in the park" statute on pp. 80-81 is an homage to this classic exchange:

From the Minutes of a Borough Council Meeting:

Councillor Trafford took exception to the proposed notice at the entrance of South Park: ‘No dogs must be brought to this Park except on a lead. ’ He pointed out that this order would not prevent an owner from releasing his pets, or pet, from a lead when once safely inside the Park.

The Chairman {Colonel Vine)-. What alternative wording would you propose. Councillor?

Councillor Trafford-. ‘Dogs are not allowed in this Park without leads. ’

Councillor Hogg'. Mr. Chairman, I object. The order should be addressed to the owners, not to the dogs.

Councillor Trafford : That is a nice point. Very well then: ‘ Owners of dogs are not allowed in this Park unless they keep them on leads. ’

Councillor Hogg: Mr. Chairman, I object. Strictly speaking, this would prevent me as a dog-owner from leaving my dog in the back-garden at home and walking with Mrs. Hogg across the Park.

Councillor Trafford: Mr. Chairman, I suggest that our legalistic friend be asked to redraft the notice himself.

Councillor Hogg : Mr. Chairman, since Councillor Trafford finds it so difficult to improve on my original wording, I accept. ‘Nobody without his dog on a lead is allowed in this Park. ’

Councillor Trafford : Mr. Chairman, I object. Strictly speaking, this notice would prevent me, as a citizen who owns no dog, from walking in the Park without first acquiring one.

Councillor Hogg (with some warmth): Very simply, then: ‘Dogs must be led in this Park. ’

Councillor Trafford : Mr. Chairman, I object: this reads as if it were a general injunction to the Borough to lead their dogs into the Park.

Councillor Hogg interposed a remark for which he was called to order; upon his withdrawing it, it was directed to be expunged from the Minutes.

The Chairman : Councillor Trafford, Councillor Hogg has had three tries; you have had only two . . .

Councillor Trafford: ‘All dogs must be kept on leads in this Park.’

The Chairman: I see Councillor Hogg rising quite rightly to raise another objection. May I anticipate him with another amendment: ‘All dogs in this Park must be kept on the lead. ’

This draft was put to the vote and carried unanimously, with two
abstentions.
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I am unaware that theorists of the so called living constitution believe in subjective interpretation. Certainly, for instance, Ronald Dworkin does not. Nor does John Paul Stevens who regularly fought with Scalia over statutory interpretation because he thought statutory history had as much a role to play in determining meanings in question in statutes before them as did grammatical construction.

On whether the constitution is restricted to modes of expression that existed in 1791, first I think what you mean to say is that the meaning of a word in the constitution isn't restricted to the scope of the category in 1791. The constitution is, of course, limited to modes of expression in 1791, just as it is limited to English and, if for instance, the word "coke" appeared in it, we ought to construe the word to mean a carbon product and not a soft drink that was not invented for over another century. But it is tenable to assert that the word arm means "weapon" and that, in context, it means "firearm," and that a reasonable construction of the word "firearm" would include weapons of the same sort invented afterwards (not including therefore photon torpedoes, perhaps).

There are two problems with this response. One is that it isn't applied consistently. One of the main claims against stating that capital punishment is cruel and unusual punishment is that, a) capital punishment was widely accepted at the time of the writing of the constitution and b)they pretty clearly had in mind such practices as flogging, a widely used punishment in the British navy. But if firearms aren't to be limited to muzzle loading flintlocks because words come to be applied to different versions of the same kinds of things, why can't "cruel and unusual punishment," which is pretty self-evidently an evaluation and not a denomination, come to apply to punishments that a different society--ours--evaluates differently. The words still mean what they meant, but we see that their evaluation is appropriate to other kinds of punishments.

Second, like it or not, refusal to limit "arms" to flintlocks (or at least, weapons that aren't usually used in hunting) has to do with what one takes the purpose of the amendment to be. If takes it that the dependent clause limits its scope to taking away the national governments ability to do away with state militias (on the 18th century knowledge that a national government that had a monopoly on standing armies had a well-established tendency to be oppressive), one might reasonably think, as someone above me has suggested, that the amendment may have been made obsolete, but that it has nothing to do with a freedom by individuals outside of militias to own firearms. Further, if one thinks its purpose to be to enable states to form militias, one will certainly not think it applies to individuals privately owning weapons whose purpose is killing people and not other forms of sporting activities.
 
originally posted by Michael Lewis:
I skipped most of the words above this post, but I have a solution. Let's just repeal the second amendment.
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I agree. We should also renew the Voting Rights Law as it was originally applied. But, alas, neither will happen. I also think that, in principle, originalists are right to object to solving legislative issues judicially. The question always is whether they are not judicial issues. Legislating gun control was a legislative issue until it was determined that it was a judicial issue (rightly or wrongly) as was abortion (rightly or wrongly) as was the death penalty (right or wrongly).
 
originally posted by Jonathan Loesberg:
originally posted by Michael Lewis:
I skipped most of the words above this post, but I have a solution. Let's just repeal the second amendment.
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I agree. We should also renew the Voting Rights Law as it was originally applied. But, alas, neither will happen. I also think that, in principle, originalists are right to object to solving legislative issues judicially. The question always is whether they are not judicial issues. Legislating gun control was a legislative issue until it was determined that it was a judicial issue (rightly or wrongly) as was abortion (rightly or wrongly) as was the death penalty (right or wrongly).
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The issue of the (sometimes (often?) slippery) boundary between legislative and judicial issues deserves a separate thread.
 
originally posted by Jonathan Loesberg:
On whether the constitution is restricted to modes of expression that existed in 1791, first I think what you mean to say is that the meaning of a word in the constitution isn't restricted to the scope of the category in 1791. The constitution is, of course, limited to modes of expression in 1791, just as it is limited to English and, if for instance, the word "coke" appeared in it, we ought to construe the word to mean a carbon product and not a soft drink that was not invented for over another century. But it is tenable to assert that the word arm means "weapon" and that, in context, it means "firearm," and that a reasonable construction of the word "firearm" would include weapons of the same sort invented afterwards (not including therefore photon torpedoes, perhaps).
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I don't think you got my drift. The First Amendment guarantees freedom of speech and freedom of the press. That freedom extends to newspapers (which existed in 1791) and to the Internet (which didn't). That is what I meant by "modes of expression."

There are two problems with this response. One is that it isn't applied consistently. One of the main claims against stating that capital punishment is cruel and unusual punishment is that, a) capital punishment was widely accepted at the time of the writing of the constitution and b)they pretty clearly had in mind such practices as flogging, a widely used punishment in the British navy. But if firearms aren't to be limited to muzzle loading flintlocks because words come to be applied to different versions of the same kinds of things, why can't "cruel and unusual punishment," which is pretty self-evidently an evaluation and not a denomination, come to apply to punishments that a different society--ours--evaluates differently. The words still mean what they meant, but we see that their evaluation is appropriate to other kinds of punishments.
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The Eighth Amendment does not supply the example you're looking for of the principle being applied inconsistently.

For one thing, the Eighth Amendment is another Amendment that takes a unique form not found in most of the other nine: it contains a variable in the text! To wit, the word "unusual." To violate the Eighth Amendment, a punishment must be both "cruel" and "unusual." Cruel punishments that are not unusual are legal, and unusual punishments that are not cruel are also legal. If you are looking to find textual justification for an "evolving standards of decency" interpretation of the Eighth Amendment, then, you can find it in the text. It is not implausible to argue that the death penalty is unconstitutional now but wasn't then because it was always cruel, but has lately also become unusual. But this doesn't work for most of the other amendments. (The Fourth Amendment would be another example of a text with a sneaky variable, in banning "unreasonable" searches and seizures and thus opening the door to changing standards of reasonability.)

It's true that capital punishment was accepted at the time of the drafting of the Constitution and almost certainly would have been deemed constitutional by the people who passed the Eighth Amendment. Under a textualist theory of interpretation, however, that's not particularly relevant. What matters is what they wrote, not what they thought.

You describe two "main claims against stating that capital punishment is cruel and unusual punishment," but those would not be the "main claims" made by any death penalty proponent I'm familiar with. The primary claim is that the Constitution says you cannot be deprived of life, liberty, or property without due process of law; the implication is that *with* due process of law, you can indeed be deprived of those things. (N.B.: I'm aware that implication would not follow if you were diagramming the argument with formal logic operators, but we all accept canons for the construction of legal statutes that deviate from the rules of formal logic.)
 
I was saying that "modes of expression" is not what you meant and I stand by that. The distinction between newspapers and say television or the internet, is the technological reach of the word "medium," if that was the proper word then, not some mode of expression. Because the First Amendment doesn't address the mode through which speech or expression occurs, except to add freedom of the press, it is not an appropriate analogy to the issue of the scope of the term "arms" in the Second Amendment.

I don't even understand your final paragraph. I was talking about arguments there for why the death penalty is constitutional, not why it is not. As to the claim that the argument is that since the death penalty was permitted when the amendment was written, therefore they clearly did not mean it to be unconstitutional, that is precisely what Scalia said, at least here in a speech he gave in 2002:

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soulwrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horsethieving, as anyone can verify by watching a western movie). And so it is clearly permitted today.
 
He gave variations of that speech many, many times. Here's one that makes the point as I described it. The dispositive point is not that capital punishment was permitted GENERALLY at the time of the Constitution's adoption, but that it was permitted BY THE CONSTITUTION.

Sometimes the text will be ambiguous and the tradition won’t be entirely easy to find out, and I’ll just have to take my best shot. But some things at least—most things—are easy for me. But for the non-originalist—for the livingConstitution type, who believes that, you know I’m supposed to give it the meaning that is the best for the modern society—everything’s an open question for that person. For example, whether the death penalty is unconstitutional. It’s an easy question for me. I mean, you know, the Fifth Amendment says that [reading] “no person shall be . . . deprived of life, liberty, or property, without due process of law.” You can be deprived of life with due process of law. The Sixth Amendment says [looking at Constitution handbook] “in all criminal prosecutions” . . . no wait I’m sorry . . . where is it . . . [pages through book] [joking] My God they took it out! [laughter and applause] Ah, you know, I think it’s in the text and not in the Bill of Rights. It does provide that you cannot be prosecuted for a capital offense except on presentment of a grand jury. So the Constitution mentions capital punishment—it’s easy for me.
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But the point as you describe it does not change that he also made the point as I describe it. The fact that the Constitution mentions capital punishment in one context does not mean that cruel and unusual punishment couldn't refer to that as a principle in another context unless you thought that it was evidence that they didn't intend to exclude it. And other evidence is that it wasn't in fact excluded at the time.

This of course goes back to the delusion of textualism that there is such a thing as language without intent. I know that that's not what textualists think they are doing. It's just that, in practice, it is what they are doing. Or, rather, merely what they try to do, since one can't coherently interpret texts in absence from human intention. But we've been around in circles about this.
 
originally posted by MarkS:
And people think Talmudic interpretation is obtuse...
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They work so hard at it because they already know what they'd like it to say but the taffy requires a good deal of tugging sometimes.
 
originally posted by Keith Levenberg:
But no textualist holds the views you attribute to them. Lots of cites in the Manning article I linked above about this.
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If you read what I said, you'll see that I know that is not what the think they are saying, but rather the consequence of the position they hold. That is what I mean by the contradiction between meaning to arrive at original intent and using a method that turns you attention in another direction. We can go on with this, but we'll just start repeating ourselves.
 
If you've explained how this is the consequence of the position they hold, I missed it. The article I linked includes a lengthy discussion (with cites!) on why this is NOT the position they hold.
 
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