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Conservative judges have no problem with legislation from the bench when they're the ones doing it. Again, they pretend to use an impartial "originalist" princi

Conservative judges have no problem with legislation from the bench when they're the ones doing it. Again, they pretend to use an impartial "originalist" principle when decision-making but cherry-pick the "original" texts they use or ignore them when they would lead to ruling in a way conservatives don't like. How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection (without safety requirements like a trigger lock or safe)? It's not, yet that's what conservatives decided, specifically Scalia in his majority opinion in District of Columbia v. Heller.

chub500 6y ago
https://m.youtube.com/watch?v=_j6lRdktscE https://m.youtube.com/watch?v=_j6lRdktscE Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...
- extra88 6y ago
  > Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided. > what constitutes a true liberal originalist? You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising. I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites. But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
  - chub500 6y ago
    Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?
    - stormbrew 6y ago
      What a dilemma you've conjured here: "Originalists" or a super legislature and a dead judicial system. There is clearly nothing between, either we pretend that text written in the 1700s is directly applicable to 2020 or democracy is dead? Originalism is a modern invention. It was not even a philosophy of jurisprudence until approximately the 1970s.
    - omnicom 6y ago
      You should accept that the supreme court is a nakedly political body just like the other two branches. The idea of some impartial body of judges who can strike down laws or in the case of qualified immunity just make them up is absurd. Do you think that the fact that judges often split 5-4 along ideological lines is just a coincidence, or that conservatives put such a high importance on the court during the last election so they can elect an "originalist"? The garbage passed by Roberts about "balls and strikes" is insulting, and the fact that people blindly accept it is beyond me.
    - sjy 6y ago
      You could look to the legal system in the United Kingdom, Canada or Australia, which has the same basic structure, without the bizarre political pageantry surrounding the appointment of apex court judges. In these countries judges are not considered “liberal” or “conservative,” at least not by the general public. Theories of judicial interpretation are treated as an obscure philosophical concept taught at law school, not a mainstream political issue that affects elections.
      - nickff 6y ago
berberous 6y ago
How many of Scalia’s opinions have you actually read? Humans are not perfect, and I think all judges can delude themselves with motivated reasoning at times, and all judges have some bad opinions, but having read many SCOTUS opinions, Scalia always struck me as one of the more logical and thoughtful members of the court.
splintercell 6y ago
well-regulated does not mean government regulations. It means well-functioning. Like a well regulated clock.
- brewdad 6y ago
  We have a standing army now. The 2nd Amendment is no longer relevant.
  - pnw_hazor 6y ago
    The Army has nothing to with personal self-defense or protection of civil rights. Standing armies were the part of the motivation for the 2nd Amd. There is plenty of 2nd Amd. scholarship that goes over all of this. Not saying you need to agree with the scholarship, but a lot of people have thought about his stuff and researched it deeply. Gotchas statements re: "...well regulated...", cars are registered why not guns, restrict people to owning muskets, etc., are unhelpful.
    - dragonwriter 6y ago
      > The Army has nothing to with personal self-defense or protection of civil rights In the view of the theory underlying the second amendment, it is an existential threat to the latter which makes assuring that the State can meet it's internal and external security needs solely through small permanent cadres plus mobilization of the citizen militia of paramount importance. > Standing armies were the part of the motivation for the 2nd Amd. Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant.
      - nobodyandproud 6y ago
        > Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant. This is inaccurate? https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45 https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45 James Madison argues from the assumption of having an standing army, and why an armed populace makes a Federal tyranny unlikely. There are many (most) things I don’t like about Republicans, but making THIS an issue is something I just don’t understand about Democrats. Pick your battles.
nokcha 6y ago
>How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection...? The relation between the operative clause and the prefatory clause is that, historically, kings had effectively destroyed the militia by forbidding the keeping or bearing of arms. Justice Scalia's opinion in Heller cites a great deal of evidence that the original public meaning of the phrase "the right to keep and bear arms" included keeping and bearing arms for individual self-defense.
- extra88 6y ago
  How can one be an originalist and ignore half of the sentence, "A well regulated Militia, being necessary to the security of a free State,"? A law requiring a trigger lock does not infringe on the forming of militia or maintaining the security of a free State. Conservative judges, including Scalia, generally don't claim that all arms regulation is unconstitutional, they don't claim everyone has a right to own RPGs. I don't like where they draw the lines and don't think they have good reasoning for where they draw them.
  - rhino369 6y ago
    Because grammatically (then or now), that part of the sentence doesn't limit the independent clause--"the right of the people to keep and bear Arms, shall not be infringed." If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech? Practically, I don't see how it makes any difference. Handguns are used by every single armed forces in the world. Any militia would need them anyway. If I can't own a handgun, how could I serve in a militia?
    - extra88 6y ago
      > If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech? I would say the intent is much narrower than the actual text so while "a well read electorate" would call for more than just political speech, such a First Amendment would be allow more laws to restrict speech without being unconstitutional. People in the armed forces don't own the weapons they use now. Today, the National Guard is basically the "Militia." Even if you think militia needs to include organizations not directed by governors, weapons can be owned by smaller political entities (towns, counties, etc.) or NGOs. In any case, weapons for a militia can be stored in an armory, not in every member's home or on their person all the time. Yet again, even if some of the weapons were stored in the home, there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.

chub500 6y ago

https://m.youtube.com/watch?v=_j6lRdktscE https://m.youtube.com/watch?v=_j6lRdktscE Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...

extra88 6y ago
> Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided. > what constitutes a true liberal originalist? You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising. I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites. But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
- chub500 6y ago
  Let me push back one more time. If what you're saying is true, and no judge no matter how much integrity they have can be truly originalist - what do we do? Is our judicial system dead? Should we even try to pick originalists or give up on a third branch and let it be a super legislature? What comes of rule of law? Doesn't this seem like a problem?
  - stormbrew 6y ago
    What a dilemma you've conjured here: "Originalists" or a super legislature and a dead judicial system. There is clearly nothing between, either we pretend that text written in the 1700s is directly applicable to 2020 or democracy is dead? Originalism is a modern invention. It was not even a philosophy of jurisprudence until approximately the 1970s.
  - omnicom 6y ago
    You should accept that the supreme court is a nakedly political body just like the other two branches. The idea of some impartial body of judges who can strike down laws or in the case of qualified immunity just make them up is absurd. Do you think that the fact that judges often split 5-4 along ideological lines is just a coincidence, or that conservatives put such a high importance on the court during the last election so they can elect an "originalist"? The garbage passed by Roberts about "balls and strikes" is insulting, and the fact that people blindly accept it is beyond me.
  - sjy 6y ago
    You could look to the legal system in the United Kingdom, Canada or Australia, which has the same basic structure, without the bizarre political pageantry surrounding the appointment of apex court judges. In these countries judges are not considered “liberal” or “conservative,” at least not by the general public. Theories of judicial interpretation are treated as an obscure philosophical concept taught at law school, not a mainstream political issue that affects elections.
    - nickff 6y ago

berberous 6y ago

How many of Scalia’s opinions have you actually read? Humans are not perfect, and I think all judges can delude themselves with motivated reasoning at times, and all judges have some bad opinions, but having read many SCOTUS opinions, Scalia always struck me as one of the more logical and thoughtful members of the court.

splintercell 6y ago

well-regulated does not mean government regulations. It means well-functioning. Like a well regulated clock.

brewdad 6y ago
We have a standing army now. The 2nd Amendment is no longer relevant.
- pnw_hazor 6y ago
  The Army has nothing to with personal self-defense or protection of civil rights. Standing armies were the part of the motivation for the 2nd Amd. There is plenty of 2nd Amd. scholarship that goes over all of this. Not saying you need to agree with the scholarship, but a lot of people have thought about his stuff and researched it deeply. Gotchas statements re: "...well regulated...", cars are registered why not guns, restrict people to owning muskets, etc., are unhelpful.
  - dragonwriter 6y ago
    > The Army has nothing to with personal self-defense or protection of civil rights In the view of the theory underlying the second amendment, it is an existential threat to the latter which makes assuring that the State can meet it's internal and external security needs solely through small permanent cadres plus mobilization of the citizen militia of paramount importance. > Standing armies were the part of the motivation for the 2nd Amd. Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant.
    - nobodyandproud 6y ago
      > Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant. This is inaccurate? https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45 https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45 James Madison argues from the assumption of having an standing army, and why an armed populace makes a Federal tyranny unlikely. There are many (most) things I don’t like about Republicans, but making THIS an issue is something I just don’t understand about Democrats. Pick your battles.

nokcha 6y ago

>How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection...? The relation between the operative clause and the prefatory clause is that, historically, kings had effectively destroyed the militia by forbidding the keeping or bearing of arms. Justice Scalia's opinion in Heller cites a great deal of evidence that the original public meaning of the phrase "the right to keep and bear arms" included keeping and bearing arms for individual self-defense.

extra88 6y ago
How can one be an originalist and ignore half of the sentence, "A well regulated Militia, being necessary to the security of a free State,"? A law requiring a trigger lock does not infringe on the forming of militia or maintaining the security of a free State. Conservative judges, including Scalia, generally don't claim that all arms regulation is unconstitutional, they don't claim everyone has a right to own RPGs. I don't like where they draw the lines and don't think they have good reasoning for where they draw them.
- rhino369 6y ago
  Because grammatically (then or now), that part of the sentence doesn't limit the independent clause--"the right of the people to keep and bear Arms, shall not be infringed." If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech? Practically, I don't see how it makes any difference. Handguns are used by every single armed forces in the world. Any militia would need them anyway. If I can't own a handgun, how could I serve in a militia?
  - extra88 6y ago
    > If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech? I would say the intent is much narrower than the actual text so while "a well read electorate" would call for more than just political speech, such a First Amendment would be allow more laws to restrict speech without being unconstitutional. People in the armed forces don't own the weapons they use now. Today, the National Guard is basically the "Militia." Even if you think militia needs to include organizations not directed by governors, weapons can be owned by smaller political entities (towns, counties, etc.) or NGOs. In any case, weapons for a militia can be stored in an armory, not in every member's home or on their person all the time. Yet again, even if some of the weapons were stored in the home, there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.