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Supreme Wordplay

My mind boggled when I heard Stevens' Heller dissent (bold added, of course):

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.

The Bill of Rights as a check on governmental powers? What an unheard-of view! Darn those right-wingers, rewriting history again. Good thing we have "enlightened" justices on the Court who are now are so well-"educated" that they can assert, without the slightest hint of shame, that they believe it absurd to say the Bill of Rights was meant to check governmental power.

In perusing the Court's opinion I was struck by another strange argument from Stevens:

“To keep and bear Arms”

Although the Court’s discussion of these words treats them as two “phrases”—as if they read “to keep” and “to bear”—they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities... No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth.

In other words, the lack of a second "to" turns the Second Amendment's "to keep and bear arms" into a statement which, on its own, refers only to military use of weapons! (Had there been a second "to", Stevens implies, it would have meant something completely different -- a private right to bear arms.)

Moreover, Stevens accuses the majority of being fraudulent and deceptive ("fashioned it out of whole cloth") for thinking "to keep and bear" means essentially the same thing as "to keep and to bear"!

Scalia responds, in a footnote (14, bold added):

Faced with this clear historical usage, JUSTICE STEVENS resorts to the bizarre argument that because the word “to” is not included before “bear” ... the unitary meaning of “to keep and bear” is established.... We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution of the United States” is not a whit different from a promise “to support and defend the Constitution of the United States.

So what have we got here? Stevens creates a novel definition, prefers it over historical evidence to the contrary, and then accuses the majority of having done what he just did. Projection, anyone?

Another part of the stupidity of modern society, where we feels we can make up new definitions at will, and somehow change reality (in this case, history) because we just engaged in an act of wordplay.

And of course the media has been generally careful to adhere to the ACLU's framing (apparently self-defense is not a "civil liberty" to them) by calling the right to keep and bear arms a "new right." Reuters, for example (italics, bold added for emphasis):

Justice Antonin Scalia said for the majority the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditional lawful purposes, such as self-defense in the home. However, he said the new right was not unlimited.

Nice. Take the ACLU's framing and make it appears as though it came from Scalia's mouth, himself admitting he was creating a previously-unknown right -- though his opinion cited historical example after example to the contrary. (Glenn Reynolds notes, for example: "One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so.")

I'm sure many readers will fall for that, sadly. It's an important part of the emerging overarching strategy to depict legal originalists as "activists". (More projection.)

Taranto has a similar take.

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