Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, the notorious right wing judicial activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first source he consults is an obscure treatise, written seventy five years after the Second Amendment was ratified, which he apparently believes allows him to "rephrase" the Second Amendment.

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.
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);

It appears that Scalia's Second Rule of Constitutional Construction is: If the lawmaker's words met with disapproval, the section of the Constitution being interpreted may be rephrased upon the slightest pretext.

Hey Mick,
Here are the two versions of the 2nd Amendment to which you refer:
The Second Amendment, as passed by the House and Senate, reads:
“ 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. ”
The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:
“ 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. ”
Both versions are commonly used in official government publications, mainly because they say the same thing. The changes were quite simply to make it easier to understand in more current vernacular. The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and hangs in the National Archives. In District of Columbia v. Heller, the Supreme Court cites the House and Senate text.
The Second Amendment is the only Constitutional amendment that has a prefatory clause. However, such constructions were widely used elsewhere.
This is definitely a victory for the True wording of the Second Amendment---But the True Battle has just started. San Francisco and Chicago are the first targets of the NRA and Pro-Gun groups. The decision of the Supreme Court will be the focal point of these lawsuits, and you can be certain, that the lawyers for these cities will have one thing on their mind---The Supreme Court ruling Did Not eliminate the power of the States to pass "Reasonable" laws to protect their citizens. What is "Reasonable"?
The fact is--There will be numerous "Reasonable" laws passed, by numerous Cities and States, using the LOOPHOLE, that the Supreme Court Ruling has provided ( See Numbers--3 and 4 ). This is the upcoming battle, Not a challenge of the Justices decision----a Challenge of what the Justices Did Not Decide.
A few additional questions:
How is Justice Scalia using the “reasonable debate” for his Judicial activism?
Does a person from the “left” wing qualify as” notorious” as well?
Doesn’t Justice Scalia need at least 4 more co-conspirators for his hidden agenda?
How many copies of “Sympathy for the devil” did you sell? ( just kidding! )
May God Bless.

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 Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867)...

--Heller v. D. C.

One of Scalia's own authorities, Joel Tiffany, rejects Scala's view that the Constitution should be construed according to the normal and ordinary use of words by ordinary citizens of the founding generation.

The meaning of the constitution, and its application to the subjects intended, must be ascertained by the application of such rules of interpretation as were understood and recognized as just and valid, at the time the constitution was framed and adopted.

--Joel Tiffiney; Treatise on Government, and Constitutional Law; Section 125, Pages 66-67; A Treatise on Government, and ... - Google Book Search

I really wish you would stop pasting stuff and just talk.

Hi Mick,

I am really enjoying our "discussion". I must admit that you are more well versed in Constitutional laws and politics than me, so let me see if I can organize the information to be able to understand it better.

The original 2nd Amendment approved by the House and Senate, then later ratified by the States is as follows:

“ 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. ”

Years later, the House and Senate made a change to The Second Amendment. the revision states:

'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 comparing the original to the later House and Senate revised version, there are four changes made. This is to use the version that was more understandable to the common people of the time, not the more technical version that was originally drafted.

They are Militia, instead of militia (and no comma) and Arms, instead of arms (and no comma).

Mr. Jewell contends that " It (the revision) excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation..."

So we can't make the revisions of two capitalized words and two commas because George Washington and Co. could not pass secret (or technical) messages to their fellow politicians of the 18th and 19th century? But all is well if we remove the
added commas, and add the word "because", thus the Amendment could be rephrased by Mr. Jewell to say;

"Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

And Supreme Court Justice Scalia had the nerve to implement the House and Senate's revision, not the original version, because he believed it to be more understandable (thus more accurate) to the public of that era?

And this is because One of Scalia's own authorities, Joel Tiffany, rejects Scala's
(pardon the interruption but I must add a commercial at this exact time. I am glad you left the "i" out of Scalia, and wrote Scala because there is British musical group named Scala. they are extremely talented muscians as well as being very attractive young ladies. do yourself a favor and check them out. I guarantee that you will be impressed! i found them on you tube.) {Now back to the program}

(rejects Scalia's) view that the Constitution should be construed according to the normal and ordinary use of words by ordinary citizens of the founding generation. So if Judge Scalia would have used Mr. Jewell's version (Adding the word "because" and without the 2 commas) not the House and Senate's version (without the word "because" but with the 2 commas) Everything would have been correct?

And that the reason that Supreme Court Justice Scalia chose the House and Senate version instead of Mr. Jewell's version, or the original, technical version (with two less capitalized letters and two less commas) is so that he (Judge Scalia) could have an excuse for judicial activism?

I must admit that I am confused, (but certainly not confused about the group Scala!) and would appreciate clarification.

I would again like to thank you for the previous and future responses.

sincerely,
bud

"‘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.