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Flash The Cash
07-13-2008, 10:08 AM
The methodology of interpretation used by Justice Antonin Scalia in the Heller opinion is probably not that which the lawmakers intended for him to use. Scalia states that he will interpret the text of the Second Amendment according to the "normal and ordinary" meanings that would been given it by "ordinary citizens in the founding generation."

Anyone knowledgeable of the common law in America in the late 1700's knows that it was well established law that the goal or object of interpreting laws was "the will of the legislator", not the understanding of "ordinary citizens." (See Blackstone's commentary on the "interpretation of laws" in his famous Commentaries on the Laws of England.)

Thomas Jefferson was a lawyer and would have known what the object of interpreting a law was when the Second Amendment was made. He was preaching it in 1812 to the Governor of Virginia.


The... maxims of the bench, to seek the will of the legislator and his words only, are proper... for judicial government.

--Thomas Jefferson to James Barbour, 1812. ME 13:128

Flash The Cash
07-14-2008, 10:08 AM
He's Obviously Cherry Picking

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse To Cherry Pick Evidence That Squares With His Personal Views.

In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored my favorite activist on the Court, Justice Scalia attempts to ascertain the meaning of the term "keep arms." However, the term "keep arms" doesn't actually appear in the Second Amendment and he's already ascertained the meaning of the word "arms."


The phrase “keep arms” was not prevalent in the written
documents of the founding period that we have found,
but there are a few examples, all of which favor viewing
the right to “keep Arms” as an individual right unconnected
with militia service. William Blackstone, for example,
wrote that Catholics convicted of not attending
service in the Church of England suffered certain penalties,
one of which was that they were not permitted to
“keep arms in their houses.” 4 Commentaries on the Laws
of England 55 (1769) (hereinafter Blackstone); see also 1
W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689)
(“[N]o Papist . . . shall or may have or keep in his House
. . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of
the Crown 26 (1771) (similar). Petitioners point to militia
laws of the founding period that required militia members
to “keep” arms in connection with militia service, and they
conclude from this that the phrase “keep Arms” has a
militia-related connotation. See Brief for Petitioners 16–
17 (citing laws of Delaware, New Jersey, and Virginia).
This is rather like saying that, since there are many statutes
that authorize aggrieved employees to “file complaints”
with federal agencies, the phrase “file complaints”
has an employment-related connotation. “Keep arms” was
simply a common way of referring to possessing arms, for
militiamen and everyone else.7

When Scalia was ascertaining the meaning of the word "arms", he went to "Samuel Johnson’s dictionary." However, this time he goes to "Commentaries on the Laws of England." He's obviously cherry picking.

Flash The Cash
07-15-2008, 10:05 AM
Heller v. D. C. Opinion Is Judicial Activism

In the passage below, from the Supreme Court opinion in Heller v. D. C, the activist majority attempts to ascertain the meaning of the word "bear." Instead of keeping its promise to construe the words of the Second Amendment according to the "normal and ordinary" meanings attached to the words by "ordinary citizens in the founding generation", the Court turns to two dictionaries and some dicta in a 1998 judicial opinion


At the time of the founding, as now, to “bear” meant to
“carry.” See Johnson 161; Webster; T. Sheridan, A Complete
Dictionary of the English Language (1796); 2 Oxford
English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning
that refers to carrying for a particular purpose—
confrontation. In Muscarello v. United States, 524 U. S.
125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ” Id., at 143 (dissenting opinion)

--Five activist Justices on the U. S. Supreme Court as of July 2008.
The author of Johnson's Dictionary wasn't even an American and Justice Ginsburg is hardly a member of "the founding generation." Once again, it is obvious that the Court is cherry picking.

Flash The Cash
07-21-2008, 09:25 AM
In the passage below from the U. S. Supreme Court Opinion in the case of Heller v. D. C., my favorite activist on the Court, Justice Antonin Scalia, construes the term "keep arms." I note for the record that the term "keep arms" doesn't actually appear in the Second Amendment. I note also, that Sclaia has already construed the words "keep" and "arms."

Recall that Scalia said he was going to construe the words of the Second Amendment according to the normal use of the words by ordinary Americans at the time the Amendment was made. Instead of following the rule he said he was going to use, Scalia construes the term according to the way Sir William Blackstone, King William and Queen Mary, and William Hawkins, an English Barrister, used the term. None of those persons qualify as ordinary Americans at the time the Second Amendment was made.


The phrase “keep arms” was not prevalent in the written
documents of the founding period that we have found,
but there are a few examples, all of which favor viewing
the right to “keep Arms” as an individual right unconnected
with militia service. William Blackstone, for example,
wrote that Catholics convicted of not attending
service in the Church of England suffered certain penalties,
one of which was that they were not permitted to
“keep arms in their houses.” 4 Commentaries on the Laws
of England 55 (1769) (hereinafter Blackstone); see also 1
W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689)
(“[N]o Papist . . . shall or may have or keep in his House
. . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of
the Crown 26 (1771) (similar).

What Scalia did in the above passage was legislate from the bench to insert the word "individual" before the word "right" in the Second Amendment. He justifies his judicial activism with the claim that English law once forbid some subjects of the Crown to "keep arms in their houses", based on their religious beliefs.

Flash The Cash
07-22-2008, 08:17 AM
Scalia’s methodology of interpretation is to decide what he wants a word to mean, find a source that defines or uses it in a way that squares with his desired outcome and then try to convince us that he followed an objective un biased method of interpretation.

For example:

When interpreting the phrase “right of the people”, Scalia ignores the “usual and ordinary meaning” of the words comprising the phrase, and instead relies exclusively on the context of the phrase. That is to say, he considers nothing but the way the phrase, and the word “people” is used in other parts of the Constitution and Bill of Rights. Recall that Scalia said he was going to construe the Constitution’s words and phrases as they were used in their normal meaning (which includes an idiomatic meaning, but excludes secret or technical meanings) and their ordinary meaning by ordinary Americans of the founding generation. Scalia said nothing whatsoever about establishing their meaning from the context.

However, when interpreting the word “arms”, Scalia relies on the way the word was used in a passage from Alexander Pope’s translation of Homer’s Iliad and by Timothy Cunningham in a passage from A new and complete Law Dictionary. Again, recall that Scalia said he was going to construe the Constitution’s words and phrases as they were used in their normal meaning (which includes an idiomatic meaning, but excludes secret or technical meanings) and their ordinary meaning by ordinary Americans of the founding generation. Homer and Timothy Cunningham weren’t ordinary Americans of the founding generation.

Flash The Cash
07-30-2008, 01:45 PM
1. Operative Clause.

a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.

--Heller v. D. C.

Scalia's a hoot. He said he was going to interpret the Second Amendment according to the normal and ordinary use of words by ordinary citizens of the founding generation. Then he immediately proceeds to construe some of the words of the Amendment according to the use of the words in other sections of the Constitution.

What a bozo! If he's going to use context, he shouldn't tell us the was going to use the normal and ordinary meanings of the words.

Flash The Cash
08-22-2008, 03:15 PM
Activist Judges Use Old Foreign Law To Interpret U. S. Constitution



"‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)).

--D. C. v. Heller

Did anyone notice that Rex v. Marks was an English case? The five judicial activist are using very old foreign law to interpret the U. S. Constitution.