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My mind boggled when I heard Stevens' Heller dissent (bold added, of course):
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:
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):
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):
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. Add your two cents...
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The court makes up things on occasion- it is nice to see they actually worked of the constitution this time.
What? Roe v Wade was made up from who cloth- right to privacy... I still find that hilarious.
Honestly, I think all this should be covered under the 9th amendment- unless shown otherwise to be dangerous the government can't ban things.
Posted by: Samuel Skinner on June 28, 2008 11:16 PM