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It's not an appeal to authority. The Supreme Court is literally the last word on the Constitution in the United States, therefore they are the authority on it.

by jki275 7y ago

It's not an appeal to authority. The Supreme Court is literally the last word on the Constitution in the United States, therefore they are the authority on it. Scalia's opinion is the law of the land, and the reasoning is sound. Unless you're a SCOTUS justice, your opinion on the matter isn't really relevant.

camgunz 7y ago
I agree, which is why I actually haven't given my opinion on 2A. I know that because it involves a discussion on whether Americans have a constitutional right to own nuclear weapons. I've only summarized relevant bits of the Constitution, the Federalist Papers, law (The Militia Act of 1792) and Supreme Court precedent. I concede I'm not likely to convince you. But I implore you not to be taken in by one of the most hollow Justices in the post WWII era. Originalism/Textualism is itself an appeal to authority to the Founders, and its sole purpose is to mask a reactionary conservative agenda by mythologizing a group of people whose overarching concern was how to write a founding document that both enshrined human rights and the will of the people as the source of the American government's legitimacy, while also granting assurances to the South that they would be able to own other humans in perpetuity. It is at best misguided and ignorant to try and present this era as unusually enlightened, but when you consider how women, indigenous people, abducted and enslaved people, and immigrants of most nations were butchered, raped, subjugated, denigrated, bought and sold (yes, by Founders), it's full on repugnant. I urge you to look past Scalia's admittedly charming sophistry, which I promise you conceals a richer, more optimistic and inspired world exorcised of centuries-old ghosts in powdered wigs.
- jki275 7y ago
  You mischaracterize the founding fathers and the Constitution. First, the founding fathers did not ensure that slavery would be allowed in perpetuity. In fact, the slave trade had already been outlawed (and later the US Navy even sent ships to Africa to interdict slavers leaving the continent -- I wrote a paper years ago on the USS Constellation's involvement there), and the seeds of the civil war were sown in the 3/5ths compromise, which ensured that the south would never be able to muster the power to keep slavery legal. No one holds up pre colonial times as bastions of freedom and enlightenment. We fought a war then, and there is no question that many things that were not good happened then. But it's also not sophistry to analyze the intent of the framers of our country's original documents in ensuring that we follow the law. The Constitution is the law of the land, and it means exactly what it says -- which is that the right to keep and bear arms is a natural and individual right. It does not say that having a militia is a right, it does not say that owning handguns is for self defense. It says that the right of the people to keep and bear arms shall not be infringed. There is only one statement stronger in the Bill of Rights, and that is "Congress shall make no law" in the first. The militia clause isn't dependent on the right. The militia clause gives a reason for this right (and keep in mind that 10 USC 246 is still in effect to this day), but the right is not dependent on it. Scalia clearly lays this out, gives the proper English lesson, and explains why the amendment means precisely what it says. That's not sophistry. Oddly enough, your argument above actually is the exact definition of sophistry. If you don't like the Constitution, it has a mechanism to change it. Try it if you feel it's necessary, but don't make up stories about how it doesn't mean what it means.
  - camgunz 7y ago
    > Scalia clearly lays this out, gives the proper English lesson, and explains why the amendment means precisely what it says. I will reluctantly get into Scalia's "proper English lesson", but it's just ultra boring, big chunks of quoted text, and ends with him being wrong. But here we go anyway. Scalia tries to show that 2A was meant to apply to all individual persons, not groups of people, not subsets of people, and certainly not just militias: > What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in _United States v. Verdugo-Urquidez_: “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” > This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” This is wrong. Constitutional rights didn't apply to women, children, immigrants, people of color, or Native Americans. If you disagree, consider that women largely weren't allowed to own property or attend school beyond a young age. When the Founders wrote "[pP]eople", they were not referring to all the people, so Scalia's argument that using "the militia" would inappropriately create a subset is wrong. "People" was already a subset, and the Founders were clearly aware. That's his whole argument for 2A as an individual right.
  - camgunz 7y ago
    (Sorry, gotta break this up into parts) > First, the founding fathers did not ensure that slavery would be allowed in perpetuity. In fact, the slave trade had already been outlawed (and later the US Navy even sent ships to Africa to interdict slavers leaving the continent The slave trade was outlawed because Virginia wanted it outlawed. It was a net exporter of slaves, and they feared both rebellion and economic ruin if the trade continued. The morality of it was just a smokescreen. [1] > ...the seeds of the civil war were sown in the 3/5ths compromise, which ensured that the south would never be able to muster the power to keep slavery legal. The exact opposite is true [2]. The South wielded outsized power precisely because of the 3/5ths compromise, which actually led to Missouri entering the Union as a slave State. It also extended slavery to territories stolen from Mexico. Not only did they keep slavery legal, they expanded its reach. > But it's also not sophistry to analyze the intent of the framers of our country's original documents in ensuring that we follow the law. I agree, which is why I think Textualism is idiotic at best, and a smokescreen concealing a reactionary agenda at worst. I also think we should consider that many of the Founders were downright evil when divining their intent--3/5ths compromise is probably the best example, but my definition of evil encompasses "enslaved others", and that's over a dozen depending on how you count [3]. > The Constitution ... says ... that the right to keep and bear arms is a natural and individual right It's ironic for you to use the words "it means exactly what it says" and then use a phrase that exists neither in the Constitution nor the Bill of Rights. Let's quote 2A again here: > 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. Let's also quote the 1st draft of 2A: > A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. This one is even more focused on militias and military service. 2A was always--from its inception--about militias.

by jki275 7y ago

camgunz 7y ago

I agree, which is why I actually haven't given my opinion on 2A. I know that because it involves a discussion on whether Americans have a constitutional right to own nuclear weapons. I've only summarized relevant bits of the Constitution, the Federalist Papers, law (The Militia Act of 1792) and Supreme Court precedent. I concede I'm not likely to convince you. But I implore you not to be taken in by one of the most hollow Justices in the post WWII era. Originalism/Textualism is itself an appeal to authority to the Founders, and its sole purpose is to mask a reactionary conservative agenda by mythologizing a group of people whose overarching concern was how to write a founding document that both enshrined human rights and the will of the people as the source of the American government's legitimacy, while also granting assurances to the South that they would be able to own other humans in perpetuity. It is at best misguided and ignorant to try and present this era as unusually enlightened, but when you consider how women, indigenous people, abducted and enslaved people, and immigrants of most nations were butchered, raped, subjugated, denigrated, bought and sold (yes, by Founders), it's full on repugnant. I urge you to look past Scalia's admittedly charming sophistry, which I promise you conceals a richer, more optimistic and inspired world exorcised of centuries-old ghosts in powdered wigs.

jki275 7y ago
You mischaracterize the founding fathers and the Constitution. First, the founding fathers did not ensure that slavery would be allowed in perpetuity. In fact, the slave trade had already been outlawed (and later the US Navy even sent ships to Africa to interdict slavers leaving the continent -- I wrote a paper years ago on the USS Constellation's involvement there), and the seeds of the civil war were sown in the 3/5ths compromise, which ensured that the south would never be able to muster the power to keep slavery legal. No one holds up pre colonial times as bastions of freedom and enlightenment. We fought a war then, and there is no question that many things that were not good happened then. But it's also not sophistry to analyze the intent of the framers of our country's original documents in ensuring that we follow the law. The Constitution is the law of the land, and it means exactly what it says -- which is that the right to keep and bear arms is a natural and individual right. It does not say that having a militia is a right, it does not say that owning handguns is for self defense. It says that the right of the people to keep and bear arms shall not be infringed. There is only one statement stronger in the Bill of Rights, and that is "Congress shall make no law" in the first. The militia clause isn't dependent on the right. The militia clause gives a reason for this right (and keep in mind that 10 USC 246 is still in effect to this day), but the right is not dependent on it. Scalia clearly lays this out, gives the proper English lesson, and explains why the amendment means precisely what it says. That's not sophistry. Oddly enough, your argument above actually is the exact definition of sophistry. If you don't like the Constitution, it has a mechanism to change it. Try it if you feel it's necessary, but don't make up stories about how it doesn't mean what it means.
- camgunz 7y ago
  > Scalia clearly lays this out, gives the proper English lesson, and explains why the amendment means precisely what it says. I will reluctantly get into Scalia's "proper English lesson", but it's just ultra boring, big chunks of quoted text, and ends with him being wrong. But here we go anyway. Scalia tries to show that 2A was meant to apply to all individual persons, not groups of people, not subsets of people, and certainly not just militias: > What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in _United States v. Verdugo-Urquidez_: “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” > This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” This is wrong. Constitutional rights didn't apply to women, children, immigrants, people of color, or Native Americans. If you disagree, consider that women largely weren't allowed to own property or attend school beyond a young age. When the Founders wrote "[pP]eople", they were not referring to all the people, so Scalia's argument that using "the militia" would inappropriately create a subset is wrong. "People" was already a subset, and the Founders were clearly aware. That's his whole argument for 2A as an individual right.
- camgunz 7y ago
  (Sorry, gotta break this up into parts) > First, the founding fathers did not ensure that slavery would be allowed in perpetuity. In fact, the slave trade had already been outlawed (and later the US Navy even sent ships to Africa to interdict slavers leaving the continent The slave trade was outlawed because Virginia wanted it outlawed. It was a net exporter of slaves, and they feared both rebellion and economic ruin if the trade continued. The morality of it was just a smokescreen. [1] > ...the seeds of the civil war were sown in the 3/5ths compromise, which ensured that the south would never be able to muster the power to keep slavery legal. The exact opposite is true [2]. The South wielded outsized power precisely because of the 3/5ths compromise, which actually led to Missouri entering the Union as a slave State. It also extended slavery to territories stolen from Mexico. Not only did they keep slavery legal, they expanded its reach. > But it's also not sophistry to analyze the intent of the framers of our country's original documents in ensuring that we follow the law. I agree, which is why I think Textualism is idiotic at best, and a smokescreen concealing a reactionary agenda at worst. I also think we should consider that many of the Founders were downright evil when divining their intent--3/5ths compromise is probably the best example, but my definition of evil encompasses "enslaved others", and that's over a dozen depending on how you count [3]. > The Constitution ... says ... that the right to keep and bear arms is a natural and individual right It's ironic for you to use the words "it means exactly what it says" and then use a phrase that exists neither in the Constitution nor the Bill of Rights. Let's quote 2A again here: > 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. Let's also quote the 1st draft of 2A: > A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. This one is even more focused on militias and military service. 2A was always--from its inception--about militias.