4 ms·

Originalism in what respect? The Second Amendment specifically stated that a well regulated militia was the purpose of the right to bear arms. The "originalist

Originalism in what respect? The Second Amendment specifically stated that a well regulated militia was the purpose of the right to bear arms. The "originalists" on the Supreme Court had no problem interpreting that to mean everyone gets a gun, regardless of their participation in the militia to defend the state. U.S. v Miller (1939) and the rise of a professional national army made the Second Amendment irrelevant until 2008. That's when your boy Scalia wrote the majority opinion of D.C. v Heller, where the conservative majority reinterpreted the Second Amendment to ignore the first part (and the previous Supreme Court decision (U.S. v Miller) and state that rather than being in the context of a militia, the right to bear arms should be applied to individuals without context. Far from trying to apply the principles of the founders to the Constitution, the conservative judges have again and again proven that they exist as a political adjunct to the Republican party, in the true model of activist judges overturning precedent whenever it doesn't fit their politics.

int_19h 7y ago
The Second Amendment doesn't say that militia is the sole purpose of RKBA, and even the cursory reading of the state RKBA provisions that preceded the Bill of Rights, and which were the source of 2A, show that they specifically talked about "defense of self" and individual rights. Take a look at the list here, and note the years when those were enacted: http://www2.law.ucla.edu/volokh/beararms/statecon.htm http://www2.law.ucla.edu/volokh/beararms/statecon.htm For example, Pennsylvania had this in 1776, more than a decade before 2A was ratified: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power." Vermont had almost the same, word for word, in 1777. The reason why 2A in the federal constitution doesn't really bother to mention this is mostly because it was in large part meant to be a contract between the feds and the states, protecting the latter from encroachment by the former. This is also why e.g. 1A says "Congress shall make no law" - and indeed, early on, it was perfectly okay for states to limit freedom of speech, subject only to their own state constitutions. The states had very real concerns about the feds trying to disarm their militias, since the Brits tried to do exactly that during the War of Independence; and that is why the militia clause is there. But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level: "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution The reason why the issue with the lack of clarity didn't really arise early on is simply because the federal government didn't have the grant of power to pass legislation of this nature that would target individuals rather than states. The earliest 2A cases were attempts to reference it in disputes between states and citizens, and in those the courts have ruled that it is out of scope there (this was before the 14A incorporation doctrine). US v. Cruikshank was the pinnacle of that approach. But if you stick to that approach consistently, then you have to do the same with 1A, 4A, and 5A - there's nothing special about 2A that would make it distinct from all those. So the Heller decision didn't re-interpret 2A - it merely pointed out that 14A applies to 2A in an obvious way. I also find it curious that you cite US v. Miller, even though the decision in Miller didn't say anything about membership in a militia, but rather the suitability of the firearm in question to militia service - the judges decided that a shotgun with a barrel shorter than 18" has no "reasonable relation to the preservation or efficiency of a well regulated militia", because "it is not within judicial notice this weapon is any part of the ordinary military equipment" (i.e. sawed-off shotguns are not used by soldiers). So Miller essentially said that 2A does not protect firearms that do not have a military purpose. Ironically, taken to its logical conclusion, this means that it protects exactly the kinds of firearms that are the most heavily regulated today.
- arrosenberg 7y ago
  > But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level: > "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution This quote is consistently taken out of context to support a radical position on the second amendment. The quote is made in the context of class inclusiveness — he's not suggesting every member of the population was a member of the militia. Furthermore, Congress would define the militia as free, white males 18-45 in 1792 — hardly a broad application. Here is the full quote: "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, etc., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered."
viridian 7y ago
I think the originalist supreme court members cut a lot closer to the original truth than your interpretation, at least with regards to Madison, and Jefferson. Arguing that the 'well regulated militia' clause is a requirement rather than prefatory is something that original documents do not back up. Painting the originalist movement as a bunch of shills doesn't seem to be fair, or helpful. For Madison's opinions, see Federalist papers 29 and 46 https://constitution.org/fed/federa29.htm https://constitution.org/fed/federa29.htm https://constitution.org/fed/federa46.htm https://constitution.org/fed/federa46.htm Important takeaway with regards to militias: both papers argue that a generally armed populace is a necessary but not sufficient requirement for the fledgling nation to maintain it's own common defense. Jefferson's opinion given in a letter to John Cartwright many years after the fact (duty to possess, with no regard to serving as a part of a well formed militia. Duty to serve also referenced separately later in the letter): https://founders.archives.gov/documents/Jefferson/98-01-02-4313 https://founders.archives.gov/documents/Jefferson/98-01-02-4... Keep in mind also that we know for a fact that arms were kept for private use by the Hamiltons, as well as at Mount Vernon and Monticello, they were far from tools of the new federal estate to be taken away upon their existence becoming troublesome.

int_19h 7y ago

The Second Amendment doesn't say that militia is the sole purpose of RKBA, and even the cursory reading of the state RKBA provisions that preceded the Bill of Rights, and which were the source of 2A, show that they specifically talked about "defense of self" and individual rights. Take a look at the list here, and note the years when those were enacted: http://www2.law.ucla.edu/volokh/beararms/statecon.htm http://www2.law.ucla.edu/volokh/beararms/statecon.htm For example, Pennsylvania had this in 1776, more than a decade before 2A was ratified: "That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power." Vermont had almost the same, word for word, in 1777. The reason why 2A in the federal constitution doesn't really bother to mention this is mostly because it was in large part meant to be a contract between the feds and the states, protecting the latter from encroachment by the former. This is also why e.g. 1A says "Congress shall make no law" - and indeed, early on, it was perfectly okay for states to limit freedom of speech, subject only to their own state constitutions. The states had very real concerns about the feds trying to disarm their militias, since the Brits tried to do exactly that during the War of Independence; and that is why the militia clause is there. But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level: "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution The reason why the issue with the lack of clarity didn't really arise early on is simply because the federal government didn't have the grant of power to pass legislation of this nature that would target individuals rather than states. The earliest 2A cases were attempts to reference it in disputes between states and citizens, and in those the courts have ruled that it is out of scope there (this was before the 14A incorporation doctrine). US v. Cruikshank was the pinnacle of that approach. But if you stick to that approach consistently, then you have to do the same with 1A, 4A, and 5A - there's nothing special about 2A that would make it distinct from all those. So the Heller decision didn't re-interpret 2A - it merely pointed out that 14A applies to 2A in an obvious way. I also find it curious that you cite US v. Miller, even though the decision in Miller didn't say anything about membership in a militia, but rather the suitability of the firearm in question to militia service - the judges decided that a shotgun with a barrel shorter than 18" has no "reasonable relation to the preservation or efficiency of a well regulated militia", because "it is not within judicial notice this weapon is any part of the ordinary military equipment" (i.e. sawed-off shotguns are not used by soldiers). So Miller essentially said that 2A does not protect firearms that do not have a military purpose. Ironically, taken to its logical conclusion, this means that it protects exactly the kinds of firearms that are the most heavily regulated today.

arrosenberg 7y ago
> But it doesn't mean that 2A is narrowly scoped to that rationale alone - the journals from the debates over the meaning of the amendment, and other correspondence between the participants (which are referenced by the Heller majority opinion, by the way, so they're not just inventing this interpretation) makes it clear that RKBA was seen as applicable on the broadest level: > "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason, Virginia Convention on Ratification of the Constitution This quote is consistently taken out of context to support a radical position on the second amendment. The quote is made in the context of class inclusiveness — he's not suggesting every member of the population was a member of the militia. Furthermore, Congress would define the militia as free, white males 18-45 in 1792 — hardly a broad application. Here is the full quote: "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, etc., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered."

viridian 7y ago

I think the originalist supreme court members cut a lot closer to the original truth than your interpretation, at least with regards to Madison, and Jefferson. Arguing that the 'well regulated militia' clause is a requirement rather than prefatory is something that original documents do not back up. Painting the originalist movement as a bunch of shills doesn't seem to be fair, or helpful. For Madison's opinions, see Federalist papers 29 and 46 https://constitution.org/fed/federa29.htm https://constitution.org/fed/federa29.htm https://constitution.org/fed/federa46.htm https://constitution.org/fed/federa46.htm Important takeaway with regards to militias: both papers argue that a generally armed populace is a necessary but not sufficient requirement for the fledgling nation to maintain it's own common defense. Jefferson's opinion given in a letter to John Cartwright many years after the fact (duty to possess, with no regard to serving as a part of a well formed militia. Duty to serve also referenced separately later in the letter): https://founders.archives.gov/documents/Jefferson/98-01-02-4313 https://founders.archives.gov/documents/Jefferson/98-01-02-4... Keep in mind also that we know for a fact that arms were kept for private use by the Hamiltons, as well as at Mount Vernon and Monticello, they were far from tools of the new federal estate to be taken away upon their existence becoming troublesome.