Thursday, June 26, 2008

It means what he wants it to mean

Part of "Fat Tony" Scalia's Supreme Court judgement that it's OK for District of Columbia coffee shops (but not federal buildings) to contain people carrying guns --

As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

In other words, since it's inconceivable that people writing in the 1780s might have been mainly focused on the rights of men (notwithstanding that they were the only ones given the right to vote), we have to construe those words as referring to everybody. Not much "strict constructionism" there.

A more general point comes from the amount of time that Fat Tony's judgement spends discussing the arcane meaning that words had in the 18th century. Is this really the most sensible basis for making public policy in the 21st?

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