Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse......

[Flash The Cash]

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, the notorious right wing judicial activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first thing he does is follow an obscure legal treatise, written seventy five years after the Second Amendment was ratified, which he believes allows him to "rephrase" the Second Amendment.


The Second Amendment provides: “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.” In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.... The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);

Who can tell the class why the Constitution shouldn't be interpreted according to the normal and ordinary use of words by ordinary citizens of the founding nation?

[torchbearer]

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, the notorious right wing judicial activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first thing he does is follow an obscure legal treatise, written seventy five years after the Second Amendment was ratified, which he believes allows him to "rephrase" the Second Amendment.


The Second Amendment provides: “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.” In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.... The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);

Who can tell the class why the Constitution shouldn't be interpreted according to the normal and ordinary use of words by ordinary citizens of the founding nation?

Because our language is fluid and the meanings are too.
This would cause a contracts meaning to change, when its content is suppose to be a guarantee.

[clytle374]

Because our language is fluid and the meanings are too.
This would cause a contracts meaning to change, when its content is suppose to be a guarantee.

Put a gold star next to your name.

[slothman]

I stopped reading after you used the word "activist".
Hows come many liberal judges are "activist" when they do something the poster doesn't like.

[torchbearer]

I stopped reading after you used the word "activist".
Hows come many liberal judges are "activist" when they do something the poster doesn't like.

Perhaps the abuse of the term "Activist" by others before the OP has made you biased against the term?

[Doktor_Jeep]

Because our language is fluid and the meanings are too.
This would cause a contracts meaning to change, when its content is suppose to be a guarantee.

That's a dangerous conclusion.

I have already seen a lot of the arguement that the Second Amendment should be changed because, as the leftists soon-to-be-wormfood gun grabbers argued, "there were no assault weapons back then".


Of course, you won't see these same people say that the First Amendment must be changed since there was no "Radio and television back then". Likely because they, and the rest of government - even those true rats who pretend they are conservatives, are USING radio and television as their weapons against the public.

So the amendment that says "hands off the weapons" of the people is OK to burn, while the other amendments that have fallen into the wrong hands are sacred.

What the Second Amendment should say is:
"The free state depends on the people being armed. Therefore if these rights are infringed, they can take their arms and kick your miserable f**king asses"

[HenryKnoxFineBooks]

That's a dangerous conclusion.

I have already seen a lot of the arguement that the Second Amendment should be changed because, as the leftists soon-to-be-wormfood gun grabbers argued, "there were no assault weapons back then".




I like to argue back that the framers allowed the citizenry to have the most the most technologically advanced weapons available at the time: the Kentucky Long Rifle. They also did not prevent the ownership/right to bear cannons, even thought they were capable of firing 48lbs and more.

Can we own cannons today? Even the ones that were around in 1791?

[TruckinMike]

"What is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
- George Mason

"The great object is that every man be armed. Everyone who is able may have a gun."
- Patrick Henry

"...to preserve liberty, it is essential that the whole bodyof thepeople always possess arms..."
- Richard Henry Lee

"No free man shall ever be debarred the use of arms."
- Thomas Jefferson

"Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state."
-Thomas Jefferson

"For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security."
-Thomas Jefferson

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms."
-James Madison

"Firearms are second only to the Constitution in importance; they are the peoples' liberty's teeth."
-George Washington

"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good."
-George Washington

"What, Sir, is the use of a militia?
It is to prevent the establishment
of a standing army, the bane of liberty. ...
Whenever Governments mean to invade
the rights and liberties of the people,
they always attempt to destroy the militia,
in order to raise an army upon their ruins."
-Elbridge Gerry

And the quote that we should have heard Scalia use...


"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." - Thomas Jefferson

but yet, it appears that Samuel Adams was right again...


"How strangely will the tools of a tyrant pervert the plain meaning of words!"
- Samuel Adams


I know y'all have seen these quotes before, but when read in comparison to what Scalia the Great has said in defense of the second - One's logical conclusion would be that Scalia was NO friend of the second.

So why didn't Scalia talk about what these men said? Instead, he talked about duck hunting! With friends like that - who needs any at all?

TMike

[Pericles]

The problem is that the judge rules on the given case, not the law. Or, as the best lawyers will tell you, bad cases make for bad case law.

Go back to the original filing and look at Heller's "prayer for relief", that is to say what he wants the court to do. The case was to allow his pistol to be registered, and the court reasoned why he should be allowed to do so.

That is the reason why you see so much verbiage about the 2nd Amendment being and individual right and the use of legitimate arms for self defense. That is what the court was asked to decide. It was not asked to decide the meaning of the 2nd Amendment, and only uses its the wording of the law to decide the case at hand.

In Miller, the court was asked to rule on the NFA applying to the weapon in question (Miller did not appear before the court, his murder preventing his appearance), so the case was argued only by the Feds, and the result was that a weapon not suitable for militia use could be taxed.

Having settled that we are discussing an individual right, the next cases will define the limits of that right that the court will recognize. This is where it will get interesting, as weapons in common use for defense and militia weapons should pass scrutiny, as lawyers will probably now use the phrase "shall not be infringed" to limit what can be subject to government control.

[TruckinMike]

the best lawyers will tell you, bad cases make for bad case law.

Yes... and the whole premise of the supreme court making a current ruling based on another case is ludicrous. Our founders would not have expected such confining rules for the highest court in the land. I believe that this notion became popular somewhere along the line and was adopted as the way its done.


That is the reason why you see so much verbiage about the 2nd Amendment being and individual right and the use of legitimate arms for self defense. That is what the court was asked to decide.

Ok, ... then why did we hear all the extra verbiage about reasonable restrictions pertaining to a legal gun(accepted by the previous courts)? It seems to me that they pick and choose issues that follow a particular agenda. And its not one that adheres to the wishes of our founders. Scalia is a tool. He had ample room to shoot down the concept of regulatory restrictions -- but he didn't.

Make all the excuses for the courts that you want, it may be the popular position in the world of the mal-educated scholars of Law, but the way I see it is its all a ruse... we must follow precedent... who are we to actually follow the intent of the founders?? Blah blah blah....

Give me a break. I've heard excuses before, these are just more of the same. I think some of the folks in the legal world are too close -- they need to stand back and look at the big picture and realize just how far off course this line of reasoning has become. That especially includes the legal scholars/professors that are filling this kind of mush in the heads of our future supreme court justices.

Like Samuel Adams said..."How strangely will the tools of a tyrant pervert the plain meaning of words!"

TMike

[Kade]

This thread is chock full of nuts.

Scalia is no different than any of the so called "activists" on the court... they all are. I prefer the Judges that vote on the side of liberty... Scalia is not one of them.

His interpretation of the Constitution is asinine.

[Pericles]

This thread is chock full of nuts.

Scalia is no different than any of the so called "activists" on the court... they all are. I prefer the Judges that vote on the side of liberty... Scalia is not one of them.

His interpretation of the Constitution is asinine.

If you look at the record of the guy who wrote the Miller decision, same deal. He was normally on the side of individual property against government intrusion. Maybe the fact that Miller was a convicted bank robber played a role in his opinion? Who knows.

Not saying Scalia wrote the opinion I would have liked, but there is a tinge of reality to take into account. 4 were going to vote the right way, and 4 the wrong way - the play was for the guy in the middle. Getting that 5th vote likely meant moving only partially in the direction the opinion needed to go.

Now, you could say "f" 'em and let's get it on, but who does time favor? Is our movement growing stronger or weaker? Should we continue to work from within to achieve reform, or is it too late? If the decision had gone the other way. would we get rolled up one by one, or are we well organized for concerted action?