Tuesday, October 13, 2020

Originalism and Judicial Activism

The Constitution says I have the right to bear arms. Does that mean a) a musket (which is what the Founders surely had in mind, 2) a handgun, 3) a machine gun, 4) an assault weapon like an AR-15, or 5) a hand-held nuclear device? We are supposed to look at the original meaning of the words and just go by that. But the founders had no idea what types of weapons would be in existence 200 + years after they wrote. So, no matter what we decide aren't we stuck with some damn activist judge, liberal or conservative, deciding what is in the spirit of the Second Amendment? Originalism offers no answer that I can see.

48 comments:

bmiller said...

I think John Hancock thought it was a good idea for citizens to have the latest in military hardware.

If you are afraid of guns. Don't own one.

SteveK said...

Read the Federalist Papers. It explains the intent of the 2nd Amendment. Hint; it has nothing to do with the type of gun.

Victor Reppert said...

https://www.washingtonpost.com/news/made-by-history/wp/2018/02/22/what-the-second-amendment-really-meant-to-the-founders/

Kevin said...

Good to read an article about how racist white people are. Oh wait that was about the Second Amendment?

bmiller said...

Good to read an article about how racist white people are. Oh wait that was about the Second Amendment?

It is, after all, a requirement for all liberals to point out that white people are racist even when discussing the best breakfast cereal. Even though, I don't think this guy is qualified.

"Noah Shusterman is an assistant professor of history at the Chinese University of Hong Kong and the author of "The French Revolution: Faith, Desire, and Politics."

This was not, however, a return to an “original understanding” of the Second Amendment, as Justice Antonin Scalia claimed for the majority. It’s not that the Founding Fathers were against the idea of an individual right to bear arms. It just was not an issue that concerned them.

This is a poor obfuscation. Of course the "individual right to bear arms" was not an issue that concerned them, because they all understood it to be a basic right. Scalia pointed this out by referring to specific state constitutions that explicitly mentioned that individual right, while pointing out that no state constitution prohibited it.

Scalia

As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.

One Brow said...

Kevin,
Good to read an article about how racist white people are. Oh wait that was about the Second Amendment?

Since the article doesn't refer to racism directly, I can only assume you agree the policies described were racist. If you don't see how racism influenced the development of the Second Amendment and it's understanding, what more do you need?

bmiller,

It is, after all, a requirement for all liberals to point out that white people are racist even when discussing the best breakfast cereal.

Why do you think it is just white people that need this pointed out?

Kevin said...

One Brow,

Half the article was devoted to talking about how bad white people were. That would seem to be talking about racism.

Were the policies racist? Well that depends. Setting aside for the moment that slavery itself was racist, would a government that allowed slavery then allow those slaves to carry guns, said slaves likely not too inclined to use those guns in defense of the country they are enslaved to? Skin color would be irrelevant in that regard.

Nor would one necessarily want to arm the natives who were not all exactly on friendly terms with the colonials. So on the surface there are non-racial reasons for not arming slaves and potential enemies of the new country that has no standing army.

I've not done any research on the matter, since slaves not owning weapons would be expected and slavery was racist anyway, but the question of the natives is an interesting one to look into.

bmiller said...

Me:It is, after all, a requirement for all liberals to point out that white people are racist even when discussing the best breakfast cereal.

Sonny Cuckoo Bird:Why do you think it is just white people that need this pointed out?


They don't, but liberals do it anyway because they are coo coo for cocoa puffs

bmiller said...

I've not done any research on the matter, since slaves not owning weapons would be expected and slavery was racist anyway, but the question of the natives is an interesting one to look into.

Having human rights depends on who the government considers a person doesn't it? Slaves definitely were not considered persons, at least in the South. It seems some friendly Native Americans were permitted weapons while others were prohibited.

One Brow said...

Kevin ,
Half the article was devoted to talking about how bad white people were. That would seem to be talking about racism.

Actually, it was discussing how the government acted. I don't recall any specific statements about white people as a group. I agree the government regulations were racist.

You refer to slaves and non-citizens, but don't try to defend other actions or non-actions. That's a little selective in your focus.

One Brow said...

bmiller,
Sonny Cuckoo Bird:Why do you think it is just white people that need this pointed out?

They don't, but liberals do it anyway because they are coo coo for cocoa puffs


From my life experiences, people tend to forget when they are not reminded.

bmiller said...

You're coo coo.

And you're welcome for the reminder.

Starhopper said...

"Originalism" essentially means placing the entire current population under the absolute rule of a privileged class (dead 18th Century people), which no living person has any hope of becoming part of, and who cannot be questioned.

This country was founded on the principle "No taxation without representation!" Well, the currently alive have no representation amongst the writers of the Constitution. Any interpretation of the Constitution that does not give a voice to the living is un-American!

bmiller said...

The living can always change the Constitution by amendment. Then an originalist would use the intentions of the amendment's creators to interpret how the amendment should apply. That rather than an outcome the originalist would prefer.

That's why we need originalists rather than partisans to be judges.

Starhopper said...

"The living can always change the Constitution by amendment."

No, they cannot. The chances of any constitutional amendment ever (and I do mean "ever") again being ratified are less than those of the proverbial snowball in hell. 2/3 of both houses of congress, plus 3/5 of the states? In your dreams. Never gonna happen.

bmiller said...

Never gonna happen.

It's never gonna happen as long as the left continues to give up on trying to persuade people and insists on using raw power to achieve it's aims. If they actually had persuasive arguments then people would, you know, be persuaded.

Since they don't, they have to do what all leftists have always done. Attempt to seize power by any means necessary and once they have power ensure they keep it. Then they tell everyone what to do.

Starhopper said...

Wow. Doesn't your head ever fly off from all that spin?

bmiller said...

There is no spin.

You just admitted the left can't get their way by persuading people to vote for amending the Constitution the way they want. So you want to get your way by ignoring the reasons for the Constitution and the existing amendments without allowing people to vote for it.

Starhopper said...

"the left can't get their way by [...] amending the Constitution the way they want"

You don't see the spin there? It's not that "the left" (whatever that means) can't "get their way" - it's that NO ONE can. As far as amendments are concerned, the Constitution is broken.

And that's why it is imperative that human beings alive today must have a say in exactly what the otherwise dead letter of the Constitution means. Otherwise, we are living under a non-representative tyranny of the dead.

bmiller said...

You don't see the spin there? It's not that "the left" (whatever that means) can't "get their way" - it's that NO ONE can. As far as amendments are concerned, the Constitution is broken.

I'm not spinning. Personally I don't think we need any amendments (except perhaps to federally specifically include protection for the unborn to correct SCOTUS misbehavior) but if we did it would require citizens convincing other citizens of that need. It was not meant to be easy to change the Constitution and that's a good thing.

Otherwise, we are living under a non-representative tyranny of the dead.

The dead don't vote so it's absurd to claim a voting republic is run by dead tyrants. Leftist logic I suppose.

We are living according to their ideas of how the laws of the United States should be formed except where it was amended, which of course, is also part of their idea of how laws should be formed. It's chronological snobbery to think ideas are bad just because they are old you know.

The Constitution is supposed to limit the federal government to a very few functions and allows states liberty to mostly decide things for themselves. I like that. If you like living in a Socialist enclave in Baltimore you can. I wouldn't. Just don't demand that every place in America be like Baltimore and I won't demand that every place be like Alabama.

One Brow said...

bmiller,

It's never gonna happen as long as the right continues to give up on trying to persuade people and insists on using raw power to achieve it's aims. If they actually had persuasive arguments then people would, you know, be persuaded.

I fixed this for you. Among other things, over the last decade, acceptance of homosexual marriage has become the norm, recognition of transsexuals as people needing medical help has been ongo0ing, and suburban white people are starting to wake up to police brutality. Illinois is about to replace a flat tax with a progressive tax. The left is persuading people.

SteveK said...

Originalism vs. activism - Christian version

“Pope endorses same sex civil unions”

Since the Pope cannot endorse gay sex I have to wonder what exactly he is endorsing.

Kevin said...

I believe he has only gone so far as to advocate civil unions as a means of protecting legal rights. What he does isn't very relevant to me, so maybe he took it farther.

Starhopper said...

As a committed Catholic who honestly believes we must pay close attention to what the Pope says, regardless of whether or not he is speaking ex cathedra, I hereby repent of all my former opposition to same sex marriage. Every comment I have ever made on this site to the contrary, I now renounce, unequivocally.

oozzielionel said...

I suspect that he is being misinterpreted.

bmiller said...

I suspect that he is being misinterpreted.

That and he's not very precise in what he does say so leftists have a lot more to work with.
We see these breathless headlines, and then when the clarifications come out the usual news sources don't report on them...as usual.

Regardless, he did not endorse same sex marriage from any of the quotes I've seen.

Kevin said...

So a point of curiosity here, due to Starhopper's post.

I'm not Catholic but I believe Peter is regarded as the first Pope. Peter is rebuked by Paul, as is documented in Galatians - in other words, Peter goofed and was corrected. Paul did not alter his beliefs to conform to Peter's error.

It is ex cathedra statements that are regarded as infallible, correct? Which means that other statements can in fact be erroneous. So given that we have biblical precedent for one regarded as a Pope goofing up and requiring correction, shouldn't one also be wary when something a Pope does appears to fly in the face of tradition? If not, how would anyone ever correct a Pope who errs?

bmiller said...

It is ex cathedra statements that are regarded as infallible, correct?

This is from Wikipedia but will suffice:

Conditions for teachings being declared infallible
According to the teaching of the First Vatican Council and Catholic tradition, the conditions required for ex cathedra papal teaching are as follows:

1. the Roman Pontiff (the Pope alone or with the College of Bishops)
2. speaks ex cathedra, that is, when, (in the discharge of his office as shepherd and teacher of all Christians, and by virtue of his supreme apostolic authority,) he defines a doctrine
1. concerning faith or morals
2. to be held by the whole Church.[13]


Private opinions are not necessarily infallible any more than your's are. However, Starhopper mentions that we should listen to what he is saying even if he is not speaking Ex Cathedra.

Peter keeping kosher while with converted Jews really doesn't even fall under disagreement in doctrine. More like Paul pointing out Peter's bad behavior.

bmiller said...

Also:
shouldn't one also be wary when something a Pope does appears to fly in the face of tradition? If not, how would anyone ever correct a Pope who errs?

There are plenty of Catholics critical of the way Francis speaks 'off the cuff' giving leftists more ammunition than other Popes have. For instance, Francis mentioned that he intended focus on the poor more than on condemning abortion. So naturally they reported that Francis was OK with abortion, which of course he wasn't, even comparing it to Nazi executions.

Catholics both focus on the poor and oppose abortion so it was a prudential mistake for him to seemingly allow the appearance of a dichotomy.

bmiller said...

But of course the Pope's apparent heterodox statements could have another explanation:

As noted here.

Starhopper said...

A VOTER'S GUIDE for Catholics who are serious about their faith (i.e., who put God above politics).

SteveK said...

Lol. I got a good chuckle from that Starhopper.

bmiller said...

A VOTER'S GUIDE for Catholics who don't give a fig about what the Church teaches and aren't serious about their faith (i.e., who put God above politics).

There. Fixed it for you.

SteveK said...

@bmiller
Love the Bee. That’s funny.

SteveK said...

It’s a voters guide for Catholics who prefer to rely on over simplified bumper sticker statements with checkboxes rather than know and understand the truth.

Starhopper said...

Thus sayeth the "Catholics" who put politics over faith, who will trust the Church only as long as it's not "left wing" (whatever that means). I prefer to follow Jesus, Who told the quarreling brothers "Man, who made me a judge or divider over you?" (Luke 12:14), thus placing Himself both above and outside of our petty partisan squabbles.

SteveK said...

Follow the Jesus that said same sex “marriage” isn’t endorsed by God.

bmiller said...

Starhopper,

Jesus wasn't a consequentialist which is what you are buying into. You've been informed what the Magisterium's official position is, so you are culpable.

Besides networkadvocates.org has been debunked by the Vatican as heterodox.

Starhopper said...

"Besides networkadvocates.org has been debunked by the Vatican as heterodox."

Attacking the source is a poor way of answering an argument.

bmiller,

So what is your opinion of Laudato si'? Despite its being an encyclical, do you reject it for supposedly being "leftist"?

SteveK said...

Pope: “Homosexuals are children of God”

An unfortunate statement that people with an agenda will repeat for political gain. The unrepentant ARE NOT children of God so this statement does not include proud homosexuals.

https://www.dailymail.co.uk/news/article-8864193/Pope-Francis-endorses-sex-civil-unions-saying-Homosexuals-children-God.html

bmiller said...

Attacking the source is a poor way of answering an argument.the

Aside from you ignoring the evidence I provided, pointing out that your source is anti-Catholic and their argument was already debunked by the Vatican is an excellent counter to their claim of orthodoxy.

Starhopper said...

Whatever the source, the article is spot on correct, and a valuable resource for Catholics bewildered by all the contradictory messages they are receiving from ideologically motivated partisans.

And what is your opinion of Laudato Si'?

bmiller said...

Starhopper,

Whatever the source, the article is spot on correct,

Well, now you've been debunked as well at them.

SteveK said...

My opinion of Laudata Si’ - having only read what Wikipedia has to say about it - is that it’s flawed. Christians and the enemies of Christ have different goals. What common home? What common good?

I’m busy keeping corrupt enemies from burning down my home and undermining Christ. I’ve asked them to repent and follow Christ but they refuse. Why would I expect corrupt people to help me build a common home that honors Christ?

Starhopper said...

Well, at least SteveK has the honesty to admit that he's at heart a Protestant. A Papal Encyclical, flawed?

By the way, I have not read what Wikipedia says about it, but after multiple readings, I've worn out my highlighter pens with all my underlining in it. Laudato Si’ may very well be the most important writing of our lifetimes. I can't wait to get my hands on his latest, Fratelli Tutti.

SteveK said...

I’m not Catholic.

Starhopper said...

My apologies. It's hard to keep everyone straight on this site.

bmiller said...

It's hard to keep everyone straight on this site.

Thought you were now, today, for gay marriage. What a homophobic remark!