Skip to main content

From Wikipedia:

originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution.

and:
Today, originalism is popular among political conservatives in the U.S., and is most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork

and of course this:

The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.
There's more of course, there always is, but there's the heart of it. So let's ask, what was the original intent of 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.
Ok, first off, we have a well regulated militia. Presumably original intent was the regulation was by the state, and in fact, the militia itself was organized by the state. This says nothing about a bunch of yahoos dressing in camo and running around in the woods calling themselves a militia. That's an unregulated, private army, that can and should be banned by the state. I very seriously doubt the original intent of the founders included very much patience at all for private armies.

Then we have keeping and bearing arms. Original intent, in terms of original arms would mean smoothbore flintlock pistols, smoothbore flintlock muskets, and flintlock rifles. These are the weapons the colonials carried. There is not a single recorded passage anywhere concerning a colonial carrying a glock.

Glocks reportedly were used in recent mass murders at a Connecticut elementary school, a Colorado movie theater, and an Arizona event attended by a member of Congress [6].
The Glock 18 is a selective fire variant of the Glock 17... This machine pistol-class firearm has a lever-type fire-control selector switch, installed on the serrated portion of the rear left side of the slide. With the selector lever in the bottom position, the pistol will shoot fully automatic, and with the selector lever in the top position, the pistol will fire semi-automatically. The firearm is typically used with an extended 33-round capacity magazine, although other magazines from the Glock 17 will function, with available capacities of 10, 17, or 19 rounds.
It seems to me somebody a long time ago decided fully automatic was not exactly in keeping with original intent, or maybe just too frigging dangerous to allow, but here you have it, a semi-auto, 33 round magazine, will fire as fast as you can hit the trigger, and if you know what you're doing, you can modify the trigger to fire if you breath on it too heavy.

That's far, far from original intent. When do we at long last decide we have had enough?

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Original intent (4+ / 0-)
    Recommended by:
    oklacoma dem, Linda1961, RonV, USHomeopath

    James Madison, who reportedly penned the 2nd Amendment to our constitution, presumably wrote it the way he did because he, and most of the other founders, were opposed to standing armies.  They felt that a strong military was dangerous to keep around, as well as very expensive, and with good cause.  And so their reasoning seems to have been to rely, as Switzerland seems to today, on the notion that every able bodied adult male should own and be trained in the use of long arms as a part of "well trained militia".

    Presumably the different states were to organize these militias...and they did in the Civil War.

    I am a 67 year old teacher...teaching computer applications in a Texas high school. I've already retired once but it didn't take.

    by 43yearsateacher on Sun Dec 16, 2012 at 06:03:05 AM PST

  •  You misunderstand original intent (3+ / 0-)
    Recommended by:
    oklacoma dem, RonV, VClib
    Then we have keeping and bearing arms. Original intent, in terms of original arms would mean smoothbore flintlock pistols, smoothbore flintlock muskets, and flintlock rifles. These are the weapons the colonials carried. There is not a single recorded passage anywhere concerning a colonial carrying a glock.
    It does not mean that, if something was not invented in 1789, it is not covered by the Constitution as adopted then.   If that were the case, then judges who believe in "original intent" would not afford first Amendment protection to radio, TV, movies, or the internet, and clearly they do.  

    Instead, it is about the principle that was put in place by those who voted for that particular constitutional provision.  In the case of the Second Amendment, Justice Scalia framed the issue in Heller as follows:

    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 two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post, at 1 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4.

    Nobody thought that "arms" meant only the kind of guns invented at the time.  Clearly, even someone who believes in "original intent" would say, is that "arms" as the word was understood at the time?  It is the same principle that they would use in speech -- newspapers and pamphlets were "speech" in 1789, so even a justice who believes in original intent would say that radio, tv, movies, and the internet are "speech." Those who believe in original intent would say that those who wrote the first amendment used words like "speech" and "arms" so as to encompass these broad concepts rather than to afford protection only to the kinds of tools that were in use at the time.  

    So, there's pretty much no question by anybody that guns that weren't invented in 1789 are still "arms" under the Second Amendment.  The question in Heller was whether the Second Amendment was intended to protect a private right to bear arms, or to protect the right of states to have militias.  The opinions in Heller go into detail -- on each side of the argument --  about what was intended by the Second Amendment.   The other question is what restrictions, if any, there can be on that constitutional right.  (Remember, there are restrictions on many rights -- such as the content neutral, time place and manner restriction on speech.  Any nobody contests that there can be SOME restrictions on the Second Amendment -- you can prohibit felons from buying guns for example.)  

    Remember, even Justice Scalia (who advocates textualism rather than original intent) would say, "If you want there to be no individual right to bear arms, that's fine -- just pass another amendment saying there is no right to bear arms."

    There are legitimate criticisms of the original intent approach, or the textualist approach, and that's a discussion that constitutional scholars have been having for decades.  But to have that, you need to accurately state the basis of the view.  

    •  I knew (0+ / 0-)

      On some level original intent was being misconstrued, or oversimplified, but in the spirit of every day language and understanding, and a willingness to reduce the argument to absurdity, I went with it.

      I want to see Scalia defend the killing of babies.

      •  That's ridiculous (2+ / 0-)
        Recommended by:
        RonV, VClib
        I want to see Scalia defend the killing of babies.
        It's really over the top to say Justice Scalia somehow has to "defend the killing of babies."  He didn't put the Second Amendment in the Constitution.  The only question he answered is whether he thought that, when it was put in the Constitution, the people who put it there meant to include an individual right to bear arms or some kind of collective right to bear arms.  It was not a clear cut case -- there was support for both sides, if you read the opinions.  

        And if you read the Heller decision, it's very clear that the majority opinion, written by Scalia but joined by four other justices, leaves open the possibility that there can be regulations and restrictions on what the majority saw is the constitutional right to keep and bear arms.  The Heller decision absolutely, positively, does NOT mean that you can't regulate, or even ban, certain kinds of "arms."  Read the Scalia opinion before you make those kinds of statements:

        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.

        and this from the Scalia opinion:
           Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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.26

            We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

            It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

        There's definitely an argument that the Constitution should not have such a right in it.  But that is not the role of the justices.  No justice -- not one -- on the SCOTUS thinks that their role is to decide whether there ought to be a Second Amendment.  Their role is not to decide whether it should be there or what it should say -- it's only to decide, after the people put it there, what the people meant.  It's the role of the people, to use the same process that put that right (whether you think it meant what the majority or what the dissents said it meant) to take it out.  The problem is that the Second Amendment was put there  by a supermajority, and so it needs to be changed by a supermajority, and (at least until this point) there was no supermajority for doing that.  If there's a supermajority for changing the Second Amendment, then our elected representatives should start that process.  

        Nobody is defending the "killing of babies."  

      •  OK dem - why would Scalia have to defend anything? (0+ / 0-)

        Scalia wrote the majority but was joined by four others. In addition, as coffeetalk has noted Heller did not prohibit state, local or federal legislatures from passing reasonable gun control legislation.

        "let's talk about that"

        by VClib on Sun Dec 16, 2012 at 09:11:51 PM PST

        [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site