Thursday, June 26, 2008

Why we love Justice Scalia

In any event, the meaning of “bear arms” that petitioners
and JUSTICE STEVENS propose is not even the (sometimes)
idiomatic meaning. Rather, they manufacture a
hybrid definition, whereby “bear arms” connotes the
actual carrying of arms (and therefore is not really an
idiom) but only in the service of an organized militia. No
dictionary has ever adopted that definition, and we have
been apprised of no source that indicates that it carried
that meaning at the time of the founding. But it is easy
to see why petitioners and the dissent are driven to the
hybrid definition. Giving “bear Arms” its idiomatic meaning
would cause the protected right to consist of the right
to be a soldier or to wage war—an absurdity that no
commentator has ever endorsed. See L. Levy, Origins of
the Bill of Rights 135 (1999). Worse still, the phrase
“keep and bear Arms” would be incoherent. The word
“Arms” would have two different meanings at once:
“weapons” (as the object of “keep”) and (as the object of
“bear”) one-half of an idiom. It would be rather like saying
“He filled and kicked the bucket” to mean “He filled
the bucket and died.” Grotesque.


Anonymous said...

A majority opinion by Scalia must be the equivalent of a Republican lawyer's Viagra???

2nd Amndmnt Fan said...

Any LAND OWNER should be allowed to arm him or herself to the teeth and given carte balnche to shoot to kill. Now I said LAND OWNER, get it LAND OWNER. This way you can protect yourself and your property. Anybody that doesn't have the wherewithall to own land doesn't need a gun. So this leaves out the white trash in trailers and the scummy welfare blacks in public housing andd that's the way it should be. If that group should make a choice to arm themselves illegally then legal gyun owners should have every right to pop a cap in the ass of those that don't and not fear any criminal trial as a result. By God, then we'll take back the streets, the night, the State and the Country!

Anonymous said...

When habeas corpus was at stake a couple weeks ago, Scalia warned that giving Constitutional rights out so freely would lead to the death of Americans.

When gun-toting is at stake, Scalia forgets to worry that Americans die from gun violence by the thousands every year.

Spotlight channelling Lithwick

suck me beautiful said...

Guns don't kill people. The persons finger does, when it pulls the trigger.

I say we ban fingers.

Except for the middle one, so fuck you.

Anonymous said...

Since guns don't kill people, let's not allow the army to carry guns. Just send the people to kill the other people.

Anonymous said...

But it doesn't work that way. If you send them into battle without guns, they're as hopeless as the D.C. homeowners who couldn't have them either.

Ban everyone from owning guns, and all of a sudden only criminals have them.

Art A Layman said...


An interesting treatise, a semantic argument that appeals to the lawyers. It is the kind of argument that lead us to question the meaning of "is".

To Spotlight's point, legal justifications (opinions) for rulings are often fraught with inconsistent thought from one decision to another. Political spin seems more operative than reasoned disagreement.

No doubt the issue of the Second Amendment is complex. Besides the history of grammatical, syntactical arguments of which books have been written, there is the more common sense view.

At the time of our founding there were a myriad of reasons for the populace to "keep and bear arms". Many would not have food if they could not shoot animals in the wild. The threat of Indian uprisings were constant and "guns" bode well against bows and arrows. Tyrannical government was a major concern as was the threat of foreign governments attempting to reclaim a fledgling nation.

Many of our prominent founders expected future "mini-Revolutions" would be necessary to keep government in line. It could even be argued, semantically, that the use of "arms" as opposed to "an arm" was due to the single shot nature of weapons of the day. Fighting off a horde of Indians with one gun and a delay of a few seconds between firing rounds would argue strongly for multiple weapons in each home and/or community.

Since there was no standing army, citizens needed to be equipped to immediately form militias utililizing their own firearms.

While criminals existed they would seem to have been the lesser fear.

All that has changed; Indians are no longer a threat, notwithstanding casinos, foreign government take over attempts are nonexistent, few have to hunt for their own food, those that do mix sport with feeding. Criminals have now moved to the forefront of the argument for possessing firearms, along with "pleasure", and you conservative folks have problems with "pleasure" as a rationale for many other issues.

With standing armies loaded to the gills with weapons far more powerful than those which individuals are likely to possess, an insurrection would not appear a viable choice should the government drift toward tyranny. The better hope would be that the military would rebel.

No doubt we see in Iraq and other places that insurrections by small bands can be difficult to overcome. Often this is due to a military, controlled by goverment, that desires to minimize innocent deaths. Take away that restriction and putting down insurrections becomes far less cumbersome and costly to the military/government.

This is not to argue that the Second Amendment is passe and should be trashed but it is clearly one of our "rights" that has to be viewed in the tenor of the times. Allowing, even promoting, armed citizens, presumes that all noncriminal citizens are rational and will behave responsibly. There is a plethora of evidence to the contrary. Much gun violence occurs in workplaces, not by "criminals" but deranged or angered regular folks. Unless we all carry our firearms with us at all times we cannot expect to counter all the various threats we might face. Imagine any big city street where all pedestrians were armed; a strange look, a presumed threatening movement and the firing begins and many innocents in the middle are harmed or killed. Worst case, they all pull out their guns and a firefight ensues with potentially major losses of life.

Guns in homes is a more difficult issue, but even there a particularly heated argument could lead to mayhem. A drunk comes home to the wrong unlocked house and the owner guns him down before asking questions. We are all familiar with the child who gets his hands on dad's pistol and a sibling dies.

There are no easy answers yet tight regulations seem called for. It appears worse than folly to argue that because a piece of paper, written over 200 years ago, when life was entirely different, says we can "keep and bear arms", that we can never significantly alter it through other legislation.

Unfortunately, the issue has become political fodder and it lends itself to cute little sound bites from one political direction, so good and reasoned improvements go by the board.