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Apparently,Originalism is More Subtle than it Sounds…

Justice Antonin Scalia did an interview this morning on Fox News Sunday to promote his book, Reading the Law: The Interpretation of Legal Text.  Not surprisingly, part of the discussion was on Scalia’s preferred method of interpreting the constitution:

SCALIA: Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.

Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.

He further said:

SCALIA: What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time, say, the death penalty.

This means, according to Scalia (in another interview), when we read the following passage of the 14th Amendment that we have to understand what “citizens” and “person” meant in context of the 1860s, as well as what would have been in the mind of the authors of the document:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the aforementioned interview from January of 2011, Scalia stated (in response to a question in bolded text):

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.

Ok, that view is consonant with the notion of interpretation that requires “when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.”

Setting aside whether that is the appropriate or desirable way to interpret the document, we have to consider the following form this morning’s interview, with the issue of the Second Amendment and laws that could restrict the right to keep and bear arms:

WALLACE: But what about these technological limitations? Obviously, we’re not talking about a handgun or a musket. We’re talking about a weapon that can fire a hundred shots in a minute, SCALIA: We’ll see. I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be — it will have to be decided.

WALLACE: So, how do you decide if you’re a textualist?

SCALIA: Very carefully. My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.

And this gets to the part I find profoundly inconsistent with his views of constitutional interpretation:  if when “when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning” and “What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time” to the point that fundamental constitutional rights do not apply to half the population because back in the day we had a patriarchal society (sorry girls, we have to go with intent of the guys who wrote the words) then how can we say “well, an RPG might be constitutionally acceptable because it can be born on a person.”

To put it simply:  “arms” in the 1790s meant single-shot muskets and pistols which, dangerous as they might have been, as mere pop-guns compared to even basic handguns in the modern era.  If Scalia truly seeks to understand the constitution in terms of what the words meant when written, I cannot see how he can justify modern weapons at the same time he says “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.”

Of course, none of the authors of the Second Amendment, nor anybody who voted for it, “ever thought” that citizens of the US could purchase semi-automatic rifles, either.

In other words, if our understanding of “arms” can evolve (something Scalia clearly sees as acceptable, as he does about instruments for use in application of the death penalty—also in the interview this morning) then I do not see why our understanding of “citizen” and “persons” cannot evolve.  And if they cannot, where is the justification for our understanding of “arms” to change?

By the way:  this is not a post about gun control or gun policy.  Indeed, I think it is pretty obvious that our understanding of “arms” is quite different from what the Framers of the Second Amendment understood the term to mean.  I don’t think that that means, therefore, we should only be allowed muskets.  But I don’t claim to be an originalist—however, Scalia does and I find his views on arms and his views on equal protection to be intellectually inconsistent.

Indeed, I find the entire enterprise of pure orginalism to be a fruitless one because, as I noted in a post the other day on this subject, it is extremely difficult to actually know what the intent of the writer was or whether there was a shared understanding at the time of what a given word meant.  Further, times change (not only does technology change, but our views of ourselves and our world change) so the notion that we can only understand the constitution in the context of its origins strikes me as chimerical at best.

At a minimum, I need someone to explain to me how this philosophy of interpretation leads to the conclusion that the 14th Amendment’s equal protection clause does not apply to women, but it might just be possible that an RPG launcher conforms to the original definition of “arms” because, after all, one can “bear” it.  And on that latter point, I leave RPGs in there for drama, and because it was the subject of the Wallace-Scalia discussion.  However, I would maintain that pure originalism as defined above would mean that “arms” could only mean a muzzle-loaded, single-shot weapon because “the meaning that it had with respect to those phenomena that were in existence at the time.”  Again:  that’s not my view, but it does seem to me to be the logical conclusion of orginalist thinking.

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About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. No, as the Court in Heller said, “arms” in the 1790s meant weapons that could be used by individuals for personal defense and other purposes. This is why, as Scalia said this morning, there is no such thing as a right to own a cannon (or an F-16 with full weaponry). It’s perfectly consistent with the only logical reading of the 2nd Amendment possible, rather than the tortured logic that the minority in Heller tried to give it.

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  2. I’d also add that until there is a case before the Court dealing with other types of weapons (Heller was specifically about the District of Columbia’s absurd handgun laws) any speculation about how the 2nd Amendment applies in other situations is nothing but pure speculation. Scalia said as much in the interview, where he also conceded that, yes, there are some types of gun regulations that are likely to survive 2nd Amendment scrutiny. He didn’t go any further because it would be inappropriate for a judge to comment on the specifics of a question that might come before them in the future.

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  3. @Doug Mataconis:

    No, as the Court in Heller said, “arms” in the 1790s meant weapons that could be used by individuals for personal defense and other purposes.

    But my point is: that’s not originalism. That’s actually the dreaded “purposivism” that Scalia rejects–looking not at the exact understanding of the term as the writers would have understood it, but reinterpreting the word in the context of a combination of what the purpose of the word at the time was with modern realities.

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  4. @Doug Mataconis: My point, to be clear, is not what the court has or hasn’t done–it is an argument with regards to the tool of interpretation that Scalia is allegedly applying.

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  5. @Steven L. Taylor:

    It’s only not “textualism” if you believe that “arms” must be defined by what constituted “arms” in the 1790s and not their general description. There’s no evidence to support the conclusion that the Amendment was meant to be bound by late 18th century small-arms technology. And plenty of historical evidence for what I mentioned above, as the Heller opinion makes clear.

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  6. @Doug Mataconis: In other words, I really do want some to explain how “arms” can change in meaning and still be original in meaning, but other things, like citizenship, can’t.

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  7. @Steven L. Taylor:

    Because “arms” is a categorical description not a reference to specific items that existed in 1791.

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  8. Brian says:

    @Doug: Mmm…but if ‘arms’ can be given a broad definition yet still be textual, why can’t the same be said of ‘citizens’? Still seems like Mr. Taylor has a point.

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  9. @Doug Mataconis:

    It’s only not “textualism” if you believe that “arms” must be defined by what constituted “arms” in the 1790s and not their general description. There’s no evidence to support the conclusion that the Amendment was meant to be bound by late 18th century small-arms technology. And plenty of historical evidence for what I mentioned above, as the Heller opinion makes clear.

    Here’s the thing: the whole textualist/orginalist position is that we have to understand the word as it would have been understood by the writer. The writer of the second amendment could never have understood how handgun and rifle technogy would evolve, so to come to the conclusions in Heller requires going beyond the original understanding the words. This is patently clear.

    So, my point would be, that either one has to reject true originalism, or one has to stick with muskets. Now, I have no problem with saying that our understanding of the word has changed–but then again, I am not the one arguing for originalism.

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  10. @Brian:

    I am not discussing Scalia’s 14th Amendment argument. There are several scholars who could be called “textualists” who disagree with his position and nobody believes that everything Scalia says is always correct.

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  11. @Doug Mataconis:

    Because “arms” is a categorical description not a reference to specific items that existed in 1791.

    Two points:

    First, Scalia: “Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.”

    There is zero doubt that the destructive capacity of modern weaponry, even if it fits in the category or “arms” bears little resemblance to ” the meaning it had when it was adopted”

    Second: then why can’t you apply your own standard to things like “citizens” and other words which were categories at the time, but whose particulars have changed?

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  12. @Steven L. Taylor:

    That’s like saying that the drafters of the 4th Amendment couldn’t have conceived of telephones, therefore wiretapping is not covered by the 4th Amendment. It is a constrained understanding of what “textualism” (which as Scalia said in a previous interview earlier is different from “originalism”) that ignores the reality that the Constitution was not drafted to constrain future Americans to what people in the late 18th Century knew about the world.

    Scalia’s approach isn’t perfect, but I quite honestly prefer it to the “make it up as you go along” legal philosophy of the Ginsburg wing of the court.

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  13. @Doug Mataconis:

    I am not discussing Scalia’s 14th Amendment argument. There are several scholars who could be called “textualists” who disagree with his position and nobody believes that everything Scalia says is always correct.

    Fair enough–but it strikes me as a pretty significant issue.

    Indeed, I find it weird that people will get into these debates about “arms” and yet be less concerned about the other issues.

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  14. James H says:

    @Doug Mataconis:

    This is why, as Scalia said this morning, there is no such thing as a right to own a cannon (or an F-16 with full weaponry)

    Dang. I have to return something to Lockheed Martin ….

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  15. @Doug Mataconis:

    That’s like saying that the drafters of the 4th Amendment couldn’t have conceived of telephones, therefore wiretapping is not covered by the 4th Amendment.

    But I think that that is exactly the logical conclusion of textualism as defined.

    Scalia’s approach isn’t perfect, but I quite honestly prefer it to the “make it up as you go along” legal philosophy of the Ginsburg wing of the court.

    Except that I think that that is a highly uncharitable way of putting it. If one looks at the 14th Amendment and decides that in 2012 it should apply to women or that the 4th amendment protects against wiretaps, this isn’t “making it up as you go along” it is looking at the principles in the document and applying to modern circumstances.

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  16. Brian says:

    @Doug: I see it this way. Scaila claims that the word ‘arms’ is a category that is not simple and fixed – weapons for defense that were available, known, or reasonably imaginable to people living in the time the Constitution was written – but instead a broad, future-minded category containing EVERY item that could be used for defense, including any future inventions. A possible argument. But when the same argument is used in re the 14th Amendment, he seems to hold to a strict ‘if the Constitutional writers wouldn’t have considered them, they aren’t citizens’ definition.

    I find that unconvincing, mainly because as far as I know there are no arguments from the writers of the Constitution about future developments in guns and weapons, yet there were debates on what a citizen should be defined as – the slaves. Therefore, to be consistent, it would seem that ‘citizen’ could easily be stretched out just like ‘arms’ is.

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  17. PD Shaw says:

    I’m guessing Doug (and myself) are the only ones in this thread that read Heller, othewise they would know Scalia addressed this “frivolous” argument.

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  18. Ron Beasley says:

    The problem with textualist/orginalist position is it turns the constitution into a unbending religious document. Not that much different than taking the old testament literally.

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  19. @Steven L. Taylor:

    But I think that that is exactly the logical conclusion of textualism as defined.

    Only if one is applying a constrained, near parody version of the philosophy. The 4th Amendment speaks of a person being secure in the “person, house, papers, and effects.” It’s the people who oppose textualism who seem to be the only ones saying that the meaning of these words in 1791 must apply. By that logic, anyone living in a house not built in a manner known in 1791 would not be entitled to 4th Amendment protection. This is clearly not what the Amendment means, and no serious legal scholar like Scalia has ever argued that it does.

    As for the 14th Amendment, as I said, Scalia’s argument is by no means universally accepted and, quite honestly, hasn’t really impacted any significant case he’s ruled on because these are all matters of settled law.

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  20. @PD Shaw: I am not arguing that we really ought to be limited to muskets. I am arguing that there is a fatal flaw in a hermeneutic that allows for an expansion interpretation of “arms” but not of “citizens” and that beyond this being solely a philosophical debate, this is the way one of the Justices on the SC see things.

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  21. al-Ameda says:

    Why is it that, when discussing the Second Amendment:

    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.

    originalists and textualists like Scalia never get around to the text and context of “A well regulated militia, being necessary …” It is never part of the discussion. It is almost as if the Second Amendment is actually, “The right of the people to keep and bear arms, shall not be infringed. – Apart from politics, I do not understand this.

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  22. @Doug Mataconis: The thing is: that sounds like an argument from purpose, not originalism.

    And I don’t see why you can’t apply the same logic to the 14th Amendment, yet Scalia rejects that position.

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  23. Steven,

    I’m not saying you can’t apply it to the 14th Amendment. But, again, I do think that, like many critics of approaches to the Constitution that reject the idea of taking modern sensibilities into account, you’re not quite getting the textualist argument. After all, if your version of it is correct then any speech that doesn’t involve standing in a park and shouting loudly, or publishing a pamphlet, isn’t covered by the First Amendment. And Scalia has never taken that position, largely because it would be patently ridiculous to do so.

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  24. Al-Ameda,

    As I often do in these situation, I suggest you read the majority opinions in DC v. Heller and McDonald v. Chicago

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  25. @Doug Mataconis: So really, it seems to me that the bottom line is that it is impossible to have a truly originalist view and that the issue is really just how much of modernity one is willing to bring into the interpretation.

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  26. Brett says:

    Dr. T – I have to say I think you are not being fair to Scalia here. Much as I disagree with his jurisprudence, he is fairly consistent in how originalism applies to chaning circumstances. Guns – and other technological advances are treated differently than social values. The problem is his jurisprudence is not easy to distill simply – his book A Matter of Interpretation lays it out well.

    Broadly speaking, women are still women, however our thinking about them has changed. There is nothing new so to speak. New weapons, though, have to be analogous to what was going on at the time.

    I would add that Scalia precisely tackles the problem you raise in his book. The book also features responses by people who say that he meaning evolves over time – but still claim to be originalists (like Laurence Tribe).

    I think the key problem is what one gleans from the constitution. Original meaning to someone like Justice Breyer means we examine the values embedded in the text and see how they might apply to a changing social arrangement (his book Making our Democracy Work is also good, and is more in line with what you are suggesting). For Scalia, values are irrelevant. One looks at the text and attempts to understand how the public meaning of that text would be applied to a new problem.

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  27. James Joyner says:

    Textualism has some real problems in that the Framers simply couldn’t have foreseen the way the world evolved. But I don’t think this particular set of examples is all that damning.

    Men and women both existed, in pretty much their present forms, in 1789. Given that we were debating such things as whether women should be permitted to enter law school—not to mention trying and failing to amend the Constitution with an Equal Rights Amendment— nearly two centuries later makes it pretty clear that the Constitution, as written, didn’t given women equal rights to men in all aspects. Nor, incidentally, did it prohibit same. Thus, Congress has been able to do by statute what the Framers didn’t within the text of the Constitution.

    With regard to technological advances, however, the Framers obviously could not have been expected to anticipate the bazooka or the Tommy gun, much less the F-16. But it’s perfectly reasonable for judges to interpret the Framers’ intent that the Congress have the power to raise an army and a navy to mean a power to establish and maintain a military that included an air force. Similarly, the Court could reason that a semi-automatic hunting rifle—or even an AR-15, which is today’s equivalent of the musket the militias of old carried—was consistent with the meaning of the 2nd Amendment. Doing thus does not require countermanding the Constitution as written, merely applying reasoned judgment to it.

    Conversely, there’s no reasonable interpretation of the Constitution that held, as some Justices did in the 1970s, that capital punishment violated the 8th Amendment even while the contemporaneous 6th and subsequent 14th Amedment specifically mentioned and placed parameters on the practice.

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  28. @Brett:

    women are still women,

    True, but “citizen” means something different, yes?

    No doubt I am not fully capturing his argument from two interviews versus reading his book (which I have not).

    Much of my concern emerges from my increasing believe that understanding what “original” intent was, or having a view of what the Framers truly thought, is largely impossible.

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  29. MBunge says:

    Doesn’t Scalia really give the game away with…

    “That’s the only thing that is relevant to your decision, not whether the outcome is desirable”?

    How many times in his career on the bench and in the Court has Scalia ever made a decision that was not “desirable” on his part? I’m not talking about something he later came to regret or change his mind on. I mean how many times has Scalia ever issued or concurred with a ruling that ran contrary to his either stated or almost universally accepted desires?

    Mike

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  30. @James Joyner:

    Thus, Congress has been able to do by statute what the Framers didn’t within the text of the Constitution.

    To some degree yes, to others no. Since the ultimate protection of rights in our system is the constitution, there is something fundamentally problematic with saying that the constitution fully protects males in their due process and equal protection under the law, but only statute protects females (even though both classes of persons are citizens). This means, by this logic, that males have the right to ultimate legal protection, but women do not.

    This strikes me as fundamental.

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  31. Brandon Merrell says:

    Steven,

    The arguments initially seem inconsistent, but perhaps Scalia believes they cohere through the following logic: additional weapons can be included in the “arms” category because those weapons did not exist at the time the amendment was created and thus, as they are developed, one must determine whether they might be included according to the original definition of “arms”.

    On the other hand, all variety of individuals did exist at the time the amendments were created, but were determined to be something other than “citizens.” Because “women,” etc. have not emerged in the period after the amendment was written, but were instead reviewed for inclusion at the time it was created, it is not appropriate to revise our understanding of the definition such that they are included absent additional amendments. That’s my best attempt to make sense of this perspective.

    Also, apologies if the above was unclear or has already been addressed – I’ve only skimmed the preceding comments and have very limited knowledge of this area.

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  32. Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.

    So if I understand Scalia’s argument correctly, he’s saying that if congress passed an ammendment that repealed the 14th ammendment and ratified a 27th ammendment containing the exact same words as the 14th ammendment, this would change the properl ruling on various constitutional issues, despite the fact the constitution contains the exact same words as it did before?

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  33. @James Joyner:

    It would be very sad if the Court thought it had the job to decide: “Hunting Rifle: yes, AR-15: yes, Tommy Gun: no”

    That would actually take from Congress the authority it had 1934 to decide the division in the NFA.

    It would reverse about 80 years of law.

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  34. @john personna:

    That would actually take from Congress the authority it had 1934 to decide the division in the NFA.

    It should be noted that the NFA did not ban any weapons, it merely established an excise tax on certain categories of weapons.

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  35. @Stormy Dragon:

    So if I understand Scalia’s argument correctly, he’s saying that if congress passed an ammendment that repealed the 14th ammendment and ratified a 27th ammendment containing the exact same words as the 14th ammendment, this would change the properl ruling on various constitutional issues, despite the fact the constitution contains the exact same words as it did before?

    This well captures a substantial part of my problem with the logic at hand, yes.

    The words would change meanings for interpretative purposes not because the words changed, but because the intent of the ratifiers changed.

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  36. @Stormy Dragon:

    That is not exactly true. It is not just a case that anyone could pay a tax and get a Thompson at the local Sears.

    he result of FDR’s campaign was the National Firearms Act of 1934, which to this day requires that before a private citizen may take possession of a fully-automatic firearm he must pay a $200 tax to the Internal Revenue Service and be approved by the Treasury Department to own the firearm, which is registered to the owner with the federal government.

    I guess you skipped the “be approved by the Treasury Department to own the firearm” part.

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  37. @john personna:

    Yes, but the Treasury Department can’t generally withhold approval if you’re not a felon or mentally ill.

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  38. @Stormy Dragon:

    You know I’ve complained in the past that I hate it when gun advocates make me “pull teeth.” That is they say things that they know are incomplete (or simply false) and them make me reply to disprove them.

    Here is one report from a guy who went through the process:

    Be prepared to have the local Sheriff do his own investigation, which could mean just about anything. Mine sent a deputy out to interview my neighbors and interview my wife before he would sign. I’ve heard of some who want to see that you have a safe to lock it up in.

    You said above it was just a tax, right?

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  39. James Joyner says:

    @Steven L. Taylor: I’d think that, clearly, women are entitled to due process in exactly the same way as me. There may be narrow ways in which they’re not entitled to “equal” protection. Otherwise, for example, how would one draft males and not females? Or bar women from duty in the infantry?

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  40. PD Shaw says:

    @Stormy Dragon: He’s saying Congress can pass a law that outlaws discrimination, such as Title VII of the Civil Rights Act. The Constitution does not need to be amended all the time.

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  41. Steve V says:

    All interpretive methods have “play in the joints” that allow the person employing them to insert their own personal notions and put a thumb on the scale for a particular outcome. Originalists have done a good job of promoting their technique as being uniquely immune to the personal preferences of individual judges, but that doesn’t make it so.

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  42. steve says:

    PD- Scalia “addressed” it. Doesnt mean we think he is consistent, only that he thinks he is. If you are an originalist, the only thing you can know for sure is that the writers of the COnstitution approved of carrying single shot weapons that used black powder. Everything else is just an extrapolation of that.

    Steve

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  43. @James Joyner:

    I’d think that, clearly, women are entitled to due process in exactly the same way as me. There may be narrow ways in which they’re not entitled to “equal” protection. Otherwise, for example, how would one draft males and not females? Or bar women from duty in the infantry?

    Yes, but doesn’t the due process issues have the same originalist problem as the equal protection clause? And there is a difference between identical treatment and equal protection, although really, I am not sure that there is a solid reason for not requiring women to register for selective service nor is there a reason to deny qualified women from being in the infantry (modern warfare means that the notion that women aren’t in combat is a fiction anyway), but those are different issues.

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  44. C. Clavin says:

    Looking for consistency from Scalia is a fools errand. He had to change his mind on Wickard in order to go against Obama. His originalism comes down to the original ideas he makes up.

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  45. stonetools says:

    @Doug Mataconis:

    No, as the Court in Heller said, “arms” in the 1790s meant weapons that could be used by individuals for personal defense and other purposes.

    Is it really that clear that in the 1790s that “arms” had that fixed, universal meaning? Anyway, let’s take that as given. Its crystal clear that there are plenty of modern arms that can be used by individuals for personal defense, etc that are currently banned, including “automatic”versions of rifles and handguns that are only legally permissible in their semi-automatic versions.
    Now Scalia got out of taking <emHeller to its logical conclusion by appealing to the non-original category of the traditional:

    Although we do not undertake an exhaustive historical analysis today
    of the full scope of the Second Amendment, nothing in our opinion
    should be taken to cast doubt on longstanding prohibitions on the
    possession of firearms by felons and the mentally ill, or laws forbidding
    the carrying of firearms in sensitive places such as schools and
    government buildings, or laws imposing conditions and qualifications
    on the commercial sale of arms

    Thus Scalia weaseled out of the logical conclusion that it is unconstitutional to ban or restrict RPGs etc. or indeed to take away the Second Amendment rights of felons or the mentally ill.

    A purely originalist interpretation of the Constitution can’t work in the modern area. Scalia is happy to talk about ” originalism” when it advances his conservative agenda. When it doesn’t, “originalism” gets modified by appeals to “tradition” or “history”. Thus Scalia gets to pretend he is a scholar applying “conservative” legal principles when he is actually a conservative ideologue trying to advance his “Constitution in exile” agenda.

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  46. PD Shaw says:

    @steve: Again, that’s a charachterization of Scalia’s analysis. I don’t care if you agree with it or not; I don’t necessariy agree with it, but people are engaged in the criticism of a movie that did not see, nor intend to see because it is of the type they don’t enoy.

    I think this is roughly the relevant bit:

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

    The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

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  47. @PD Shaw: Could you not engage in a similar analysis for the word “citizen”? This is rather the point.

    And I must confess: declaring a position “frivolous” does not make it so.

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  48. @john personna:

    1. You only need the CLEO Form 4 signature if the gun is going to be owned by a person, but not if it’s going to be owned by a corporation, so one of the standard ways of purchasing NFA weapons is to set up an S-corporation that has no purpose but owning all your guns, and then making yourself one of the officers.

    2. I can’t speak for other states, but in Pennsylvania at least, CLEOS are required to provide Form 4 signatures on the same “shall issue” basis as concealed carry permits.

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  49. Ebenezer_Arvigenius says:

    On the other hand, all variety of individuals did exist at the time the amendments were created, but were determined to be something other than “citizens.” Because “women,” etc. have not emerged in the period after the amendment was written, but were instead reviewed for inclusion at the time it was created, it is not appropriate to revise our understanding of the definition such that they are included absent additional amendments.

    While this is a possible distinction it bluntly ignores the fact that even at the time woman were not precluded from certain rights due to invariable conditions inherent in the female condition but due to social judgements and circumstances that made such distinctions seem sensible (easily influenced, prone to flights of fancy, not educated enough etc.).

    As such referring only to the permanent condition (that did not form the true basis of the law) but not to the basis itself is ultimately a well-sounding shell game. The difference between guns (personal protection) and woman (not mature enough) is mainly that in one of these cases it is easier to get away with a shallow look at the matter.

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  50. @Stormy Dragon:

    I think you’ve lost the point, certainly by the time you are setting up shield corporations.

    The point is that Congress created divisions in “arms” commerce and ownership in 1934. Since that time it has taken approval to get a permit and a weapon.

    “Approval” and “permit” move things from unrestricted, “right.”

    Was that enough teeth pulling?

    It is important because the new restrictions which are proposed now are completely consistent with the NFA model. Do you want to put large magazines on a NFA style program? That’s fine. Most people would call that a ban, just like they call machine gun ownership “banned.”

    This is the key. The NFA exists. It is standing law. It created divisions in gun ownership. To restrict other guns that division would only need to be moved.

    Kind of ridiculous that we go back to the Constitution to see if the 1934 law can be nudged this way or that.

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  51. michael reynolds says:

    I think some of you miss the way ideology and philosophy work in the real world.

    There is a menu of philosophies. We choose courses from that menu. We choose the courses that most closely mirror our pre-existing desires, prejudices, self-interest, etc…

    Once you’ve ordered of the menu most people feel free to discard the garnish, or cut the meat differently than the menu calls for, in order to still more closely meet the demands of desire, prejudice etc…

    Once that menu choice is made not one person in a thousand ever sends the meal back and orders something different. People find what fits and stick with it, logic, reason and evidence be damned. Because it’s not about logic or reason or evidence, it’s about desire and prejudice and self-interest.

    Philosophies and ideologies and legal theories are tools we use to accomplish goals dictated by our own personal preferences and desires. They are tools.

    The point being that Scalia prefers to be a narrow, cramped, backward-looking person. Arguing his legal theories is a waste of time because you’re arguing against the hammer and not dealing with the person wielding the hammer. Inconsistency is irrelevant to Scalia. Logic is irrelevant to Scalia. He’s got his hammer and he’s going to keep it.

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  52. stonetools says:

    @Steven L. Taylor:

    With regard to technological advances, however, the Framers obviously could not have been expected to anticipate the bazooka or the Tommy gun, much less the F-16. But it’s perfectly reasonable for judges to interpret the Framers’ intent that the Congress have the power to raise an army and a navy to mean a power to establish and maintain a military that included an air force. Similarly, the Court could reason that a semi-automatic hunting rifle—or even an AR-15, which is today’s equivalent of the musket the militias of old carried—was consistent with the meaning of the 2nd Amendment. Doing thus does not require countermanding the Constitution as written, merely applying reasoned judgment to it.

    Of course, if you are using a reasonableness standard, that’s different from an original intent standard. The founders could not have conceived of an air force, much less satellites, so they certainly did not intend specifically for Congress to fund military satellites The ” provide for the common defense” clause saves us there.
    IMO,” original-ism” can’t get lots of things conservatives love and take for granted now. FBI? CIA? NASA? A separate Marine Corps? None of those things were originally intended by the founders. The best you can say is that the founders didn’t intend to prohibit Congress from funding such things.

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  53. PD Shaw says:

    @Steven L. Taylor: Since I don’t believe Scalia has ever writen an opinion stating that the Fourteenth Amendment does not apply to women, I have no insight into that question.

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  54. @PD Shaw: On the one hand: fair enough. On the other, I think that this conversation can exist on two levels: 1) specific rulings and 2) the philosophical.

    IN some ways, I suppose only #1 matters, but since #2 can ultimately influence #1, it seems worthy of discussion.

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  55. Brett says:

    Dr. T – Your point is fair I think – however, I think Scalia has a good response. I will say I think your title is ironic in some ways. No doubt Scalia would agree that originalism is more subtle than it sounds. You also have to remember that Scalia is a textualist first, then an originalist and is not willing to go as far on “original meaning” or overturning precedent as Thomas.

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  56. @Brett:

    I will say I think your title is ironic in some ways.

    No doubt.

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  57. bk says:

    @Doug Mataconis:

    it would be inappropriate for a judge

    You know what I find “inappropriate”? A Supreme Court Justice pimping his book on Fox News.

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  58. An Interested Party says:

    All this hot air to cover up the fact that Supreme Court Justices are going to rule however the hell they want to and then, perhaps, may try to come up with some kind of excuse (Originalism, etc.) to justify which way they ruled…oh, and of course whenever anyone disagrees with how a justice votes, that justice gets crammed into “the ‘make it up as you go along’ legal philosophy of the Ginsburg wing of the court” or some other such nonsense…

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  59. bluespapa says:

    @Doug Mataconis: Since Scalia doesn’t stick to originalism in deciding cases, what he says is his basic philosophy, then he’s making it up as he goes along with the fig leaf of pretending “originalist” readings of the Constitution.

    You seem to be missing the point of his own argument: the phenomena that existed at the writing of the Second Amendment didn’t include hundred round clips and semi-automatic weapons. Or handheld rocket launchers. He’s seizing on “bear” as defining arms of a particular sort (very well), but if one imagines that the Framers considered rocket and grenade launchers, because they are handheld, there’s nothing in the phenomena of their day to support it, other than hands, shoulders, and boom. To get Heller he had to go well beyond his philosophy, and make it up as he went along, and overturn the long-held finding by judges closer in time to the founders that a well regulated militia was really irrelevant to the whole thing. That would be making it up as he went along with a rhetorical fig leaf.

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  60. michael reynolds says:

    They did have cannon and rockets – albeit somewhat primitive versions – back in the Founders’ day. Obviously it was not contemplated in those days that private individuals would own such things as artillery. Had they, they’d of course have meant muzzle-loading cannon.

    Of course they also had simple biological weapons as well – infected clothing, putrid corpses that would sometimes be catapulted into an enemy camp and so on.

    But of course none of this matters since Scalia is in fact making it up as he goes along, deciding the outcome based on his personal desires and then rationalizing it with his wonderfully flexible judicial philosophy.

    Shorter version: Scalia’s full of sh!t and always has been. He joins the list alongside Newt Gingrich of crackpots hailed as “brilliant” by right-wingers.

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  61. Just 'nutha ig'rant cracker says:

    @Steven L. Taylor: You can’t shoot anybody with citizenship. That’s the difference. It’s always the issue of “my” rights being protected. “Yours,” on the other hand can go take a hike!

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  62. george says:

    @michael reynolds:

    Once that menu choice is made not one person in a thousand ever sends the meal back and orders something different. People find what fits and stick with it, logic, reason and evidence be damned. Because it’s not about logic or reason or evidence, it’s about desire and prejudice and self-interest.

    I really wish I could think of a good case for why you’re being unduly pessimistic. Unfortunately, I think you’re right. Logic, reason, and evidence become tools for most of us to rationalize our menu choice, rather than to examine that choice.

    Or put another way, it becomes about team sports at that point, and we’re always going to root for our team, even if they were obviously off-side on a play.

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  63. george says:

    And by team sport, I don’t mean political party – people change that. I mean what you said, our philosophy.

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  64. James says:

    @James Joyner:

    Men and women both existed, in pretty much their present forms, in 1789.

    Not true at all. Women were property, and treated as such.

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  65. @Doc,

    Nice, but sad. You had to qualify your stance several times to avoid this post getting comment bombed by the gun nuts and you still get asked about muskets. Love it.

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  66. Eric Florack says:

    It figures… find a way… any way possible to limit the means of defense not only against criminal citizens, but criminal government, both of which were intended by the founders.

    That complaint aside, do you really suppose that the founders assumed there would be no technological improvements in the area of firearms?

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  67. HankP says:

    So if someone develops a “quantum raygun” that’s capable of destroying the Earth with a single shot, but it’s the same size, shape and weight as a pistol, it’s covered by the 2nd amendment?

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  68. James Joyner says:

    @michael reynolds: Well, no, that bolsters Scalia’s case. What he’s saying—and he’s being purely academic, telling us how you might go about applying Originalism rather than issuing a legal opinion—is that, if the Framers intended with the 2nd Amendment to allow citizens to have muskets but not artillery, judges should endeavor to interpret the law in the same way but applying modern technology. Surely, if a circa 1789 musket is an individual right, the Framers didn’t intend for the 1792 model with slightly improved sights (I’m making that up) to be withheld by the Congress.

    Now, as I noted in a Twitter discussion on this topic, at some point this line of reasoning gets rather silly. At some point, technology has changed so much that it’s impossible to figure out what men who died 225 years ago would have intended. But the idea of Originalism isn’t to be governed by the dead but rather to sustain a Constitution of limited government.

    I’d add that I’m pretty sure the Framers would be gobsmacked that we only have 27 amendments all these years later, 13 of which (1-12 and 27) they wrote. Hell, they’d probably be shocked that we’re still using their Constitution, period, as a basis for governance. But Scalia’s preference and mine is that we have a written constitution that sets forth the parameters of what our governing institutions can do and that we change it when we reach a broad consensus that the old ways no longer make sense. Instead, we’ve simply ignored parts of it and stretched other parts beyond recognition.

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  69. Ebenezer Arvigenius says:

    Instead, we’ve simply ignored parts of it and stretched other parts beyond recognition.

    We’re currently doing a quantitative trans-national analysis on the staying power of constitutions and so far the results seem to be that “we’ve simply ignored parts of it and stretched other parts beyond recognition” is basically the reason the US constitution has endured this long.

    Originalism-based (i.e. inflexible) ones rarely survive beyond three generations or so.

    Maybe food for thought.

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  70. James Joyner says:

    @Ebenezer Arvigenius:

    “we’ve simply ignored parts of it and stretched other parts beyond recognition” is basically the reason the US constitution has endured this long.

    Originalism-based (i.e. inflexible) ones rarely survive beyond three generations or so.

    That seems perfectly reasonable. On the other hand, if it survives mostly in the breach, has it really survived at all? Do we, for practical purposes, actually have a written Constitution? Or have we created a defacto British unwritten Constitution with the Supreme Court as our House of Lords?

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  71. Contracts says:

    @Steven L. Taylor:

    Here’s the thing: the whole textualist/orginalist position is that we have to understand the word as it would have been understood by the writer.

    Except that, currently, the real idea of originalism is that you look to how the term would have been understood by society at the time, not “the writer” or “the writers” in the case of the Constitution itself.

    There is a wealth of literature out there on originalism. It’s fine that you disagree with the doctrine, hell, the originalist dominance is only about 30 years old at this point. But it seems that more familiarity with the writings of originalists, including conservatives like Scalia and liberals like Jack Balkin, could help with your analysis here.

    Sorry if this sounds condescending; it’s not meant to be. I don’t fully understand the contours of modern constitutional law theory, especially as deep in the weeds as we’re getting here. That’s why I suggest that you look at the established constitutional law experts for clearer resolution. It’s odd reading this account of two interviews divorced from the ongoing discussion in legal academic circles.

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  72. @James Joyner:

    But the idea of Originalism isn’t to be governed by the dead but rather to sustain a Constitution of limited government.

    I would argue that it is a mistake to overly conflate these two concepts as, to use the 14th Amendment example, the issues isn’t that orginialism gives one a limited government outcome and a non-originalist interpretation gets one unlimited/less limited government.

    Whether one thinks that women should be included in the equal protection clause does not take the limitation away, it just changes the interpretation thereof. Indeed, I would further argue that the originalist (or, at least, Scalia’s) view leads to a less limited government because it means that the government only has to worry, on a constitutional level, about equal protection males.

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  73. @Contracts:

    But it seems that more familiarity with the writings of originalists, including conservatives like Scalia and liberals like Jack Balkin, could help with your analysis here.

    This is no doubt the case.

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  74. @James Joyner:

    Or have we created a defacto British unwritten Constitution with the Supreme Court as our House of Lords?

    Actually: the Lords have never had any power anything like SCOTUS’ judicial review.

    And really, the hallmark of an unwritten constitution is that, in simple terms, whatever the legislature passes is, by default, constitutional.

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  75. @James Joyner: And not to be pedantic, but just to make where I coming from clear: I would argue that the very act of having to work through the courts in an adversarial process before a decision is rendered in the context of a written constitution (that, by definition has to be interpreted) is part of the basic definition of “limited government”–but it is a fight to figure out what the limitations are (because rather clearly even phrases like “Congress shall make no law…abridging the freedom of speech” require interpretation).

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  76. @James Joyner:

    That seems perfectly reasonable. On the other hand, if it survives mostly in the breach, has it really survived at all?

    This may be, actually, getting at the fundamental question.

    It seems to me, especially the more I have thought about it and studied it, that there is a two-way relationship between constitutions and the countries they govern. And without getting into a long discourse, it seems clear that circumstances and practices change the way the constitution is understood and put into practice. Historical and technological events change things as well. As such, ignoring all of that and trying to understand it in terms of the time it was written is like trying to play quarterback in 2012 like it was it 1950.

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  77. stonetools says:

    We’re currently doing a quantitative trans-national analysis on the staying power of constitutions and so far the results seem to be that “we’ve simply ignored parts of it and stretched other parts beyond recognition” is basically the reason the US constitution has endured this long.

    Originalism-based (i.e they opposed . inflexible) ones rarely survive beyond three generations or so.

    One problem is that the original intent is almost irrelevant to present day concerns. Going back to the Second Amendment, we know what the original intent of the backers of the Second Amendment was. They were concerned with the best method of keeping public order. They opposed standing armies(which they regarded as potential instruments of tyranny) and advocated for the raising of well regulated popular militias as the best way to to put down insurrection and to defend against foreign invasion. The Anti-Federalists lost that argument and Americans have accepted that a large standing army with fearsome weaponry is necessary for defense. The Second Amendment is simply the obsolescent survival of that debate.
    In modern times it has been twisted into a platform for arguing that the individual American should have an unlimited right to buy and own semi-automatic weaponry for the purposes of self defense, target shooting, and hunting-which is some distance away from raising popular militias for national self defense.
    “Originalism” isn’t really about finding out and enforcing the original intent of the founders: rather, it is about advancing the current concerns of the conservative agenda through right wing judicial activism.

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  78. @James Joyner:

    Surely, if a circa 1789 musket is an individual right, the Framers didn’t intend for the 1792 model with slightly improved sights (I’m making that up) to be withheld by the Congress.

    This is certainly true. However, there is a legitimate question to be asked: would they have written that amendment as they did if they knew that there was a hand-held device that had the ability to mow down dozens of people in a few minutes?

    Yes, a musket and an AR-15 are both “arms” but they are universes apart in what they can do.

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  79. stonetools says:

    @Steven L. Taylor:

    It seems to me, especially the more I have thought about it and studied it, that there is a two-way relationship between constitutions and the countries they govern. And without getting into a long discourse, it seems clear that circumstances and practices change the way the constitution is understood and put into practice. Historical and technological events change things as well. As such, ignoring all of that and trying to understand it in terms of the time it was written is like trying to play quarterback in 2012 like it was it 1950.

    Maybe the best way to handle the question of constitutional change is actually to change the Constitution. Rather than interpreting the Second Amendment in a contorted fashion in order to reflect modern concerns, why not just call a constitutional convention and draft a new amendment dealing with gun rights? We could also draft an amendment that could explicitly update the definition of “citizen”.
    This process would be fraught with danger but its definitely more democratic and open than having an unelected judicial priesthood change our Constitution by stealthy incremental change.

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  80. @stonetools: The problem, of course, is that the constitution is almost impossible to change.

    And, to make matters worse, legislating has become increasingly more difficult as well.

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  81. Anderson says:

    @Doug Mataconis: “No, as the Court in Heller said, “arms” in the 1790s meant weapons that could be used by individuals for personal defense and other purposes. This is why, as Scalia said this morning, there is no such thing as a right to own a cannon”

    But there is no reason to believe that. Militias had cannon.

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  82. JohnMcC says:

    As always, late to the show! But this remark by Justice Scalia caught my attention:

    “…Heller said….(w)hat limitations on the right to bear arms are permissible. Some (limitations — ed) certainly are because there were some that were acknowledged at the the time (of ratificaton — ed). For example, there was a tort called affrightening which if you carried around a really horrible weapon just to scare people, like a head ax (sic — in the Fox transcript) or something that was I believe a misdemeanor.”

    How could a modern “affrightening” statute NOT be written to apply to the whole ‘open carry’ business? Has there been a mining of statutes circa 1789 for precedents concerning gun control? If there were for example a legal standard from 1789 that limited the amount of gun powder a person could posess — which would be a reasonable idea in Philadelphia at the time, what with fire possibly being a tremendous threat to cities of that era — could that be applied to the use of large-capacity magazines.

    Seems to me that Scalia opened a big big can of worms for the gun lobby.

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  83. Barry says:

    @Brett: “Much as I disagree with his jurisprudence, he is fairly consistent in how originalism applies to chaning circumstances. Guns – and other technological advances are treated differently than social values. ”

    That’s what I call ‘inconsistent’. I also note that it fits in with Scalia’s political beliefs.

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  84. Max Lybbert says:

    Apparently you missed the sideshow between Stevens and Scalia in Georgia v. Randolph ( http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-1067 ). The question in that case was whether the police could search a house with permission of the wife if the husband had already refused to give permission (the end ruling was the wife’s permission was not enough).

    Stevens wrote a silly concurrence meant to tweak Scalia (“This case illustrates why even the most dedicated adherent to an approach to constitutional interpretation that places primary reliance on the search for original understanding would recognize the relevance of changes in our society. … In the 18th century, when the Fourth Amendment was adopted, … [g]iven the then-prevailing dramatic differences between the property rights of the husband and the far lesser rights of the wife, only the consent of the husband would matter.”)

    Scalia responded:

    Justice Stevens’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred. … There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. … This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding. …

    The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes–which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.

    I have no illusions that originalist judges will always come to the same conclusions (they would come to the same conclusions if the original intent could be discerned relatively easily). However, originalism creates something of a yardstick that makes it possible to intelligently argue if a ruling is plausible. The competing Living Constitution approach creates very few ways to judge the plausibility of rulings.

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