More like, in 2008 the court decided that “The Embarrassing Second Amendment” couldn’t be ignored any longer. Frankly it shouldn’t have taken this long.
nm
Textualism is a myth.
The people who eancted the Eighth Amendment didn’t think that the death penalty was ‘cruel and unusual,’ therefore it isn’t prohibited by the constitution.
However, the people who enacted the Second Amendment didn’t imagine automatic weapons, for example, but the same textualist will insist that what ‘arms’ means is relative to modern society, and doesn’t specifically apply to what was available at the time.
We still use the “tolerate” meaning of the word - for example, in “He does not suffer fools gladly.”
Does “the Press” mean an actual single-sheet screw press?
And of course freedom “of the press” only applies to the printed word - radio, television, internet can all be censored by the government.
ETA: I swear Lumpy’s post wasn’t there when I started this.
Nope. But what exactly constitutes ‘the press’ or ‘peacable assembly’ and what doesn’t is certainly up for debate.
But I’m not posting in this thread to make or defend positions on the second amendment as it relates to modern weaponry.
My point is merely that ‘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’ and ‘excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’ are often interpreted by self-described textualists in very different ways, in order to support whatever general feeling they have to begin with about what the law should be today.
A textualist *might *come to that opinion, but you’re putting words in their mouths and misconstruing how they would come to that conclusion.
As I said in my post, a muzzle loading rifle was the best weapon available in its day. There are quotes that suggest the founding fathers actually intended for a civilian militia to be the nation’s only military defense. For example: “Nor is it conceived needful or safe that a standing army should be kept up in time of peace for [defense against invasion].” --Thomas Jefferson: 1st Annual Message, 1801. ME 3:334
If Jefferson intended civilian militias to beat invading foreign armies, then surely he intended their weapons to keep pace with the technology of the day. In other letters, he compared it to Romans and Greeks, so he certainly saw the civilian militia as a force that adapts to the weapons and tactics of the times.
Of course, Jefferson’s is just one contemporaneous opinion, and Jefferson is notorious for contradicting himself.
The bottom line is that a textualist would not just look at what’s practical for the modern times as you suggest, but would look at a variety of contemporaneous opinions to clarify whether the original intent of the writers was limited to muzzle-loading guns or whether it was intended as an unlimited right to military grade weapons, or something in between. On this issue in particular, I think even two textualists could come to opposing viewpoints.
Careful with that text, Eugene. You know as well as I do that some clauses are passed over silently in the textualist universe, being meaningless and without interpretation, and that that clause is the most silent of all of them. The Framers could never possibly have mean what they said there, in whole or in part, and therefore it must be interpreted specially, by which I mean into a nullity.
Thus we see that there is no possible logical contradiction here, just textualism being used as it always is.
Given that they voted together 91% of the time, I’m assuming it’s a fine distinction.
An originalist recognizes that the First Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right.
An originalist recognizes that the Fourth Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right.
An originalist ALSO recognizes that the Second Amendment contains the phrase, “the right of the people,” but nevertheless refers to an individual right.
And furthermore, an originalist recognizes that the term militia is not defined in the Constitution, but IS defined in current law–Title 10 USC 311:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
In other words, at a rough guess, there are 60-65 million members of the militia.
No, because the Constitution specifically contemplates the death penalty as acceptable. The textualist reads language in pari materia.
And they would be wrong. The Dred Scott decision was written by a textualist, who was personally an abolitionist but who refused to take part in judicial activism.
I note you completely ignored (uh… interpreted) the text I actually quoted.
The death penalty is undeniably cruel and has become unusual. So it is banned by the 8th Amendment. More to the point, it is unfairly administered and therefore violates the equal protection clause.
This is probably better suited to Great Debates than GQ.
Colibri
General Questions Moderator
Yeah, it’s always fun to point out to people who mention the “3/5 of a person” thing that the evil slavers were the ones who wanted slaves counted as whole people. The folks who opposed slavery were the ones who would have said they didn’t count as people at all. It’s kind of fascinating to me how rarely people are aware of this.
A more accurate but less memorable version would be that slavers felt like they should personally count for an extra .6 people for every human they owned. Own five slaves? Congratulations, you get the voting power of four people!
No.
Textualists read language in pari materia. The Constitution explicitly accepts the death penalty as a permissible penalty. It is explicitly constitutional.
And Sotomayor and Kagan voted together 94% of the time. Just sayin’.
Nope. Because the penalty is explicitly contemplated in the Constitution.
Here, you may be on to something. It is absolutely true that it is unfairly administered. And not just generically “unfairly,” but unfairly with respect to race.
This is a path worth pursuing.