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Old March 18, 2009, 07:46 AM   #10
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Join Date: December 13, 2005
Posts: 2,535
Winkler makes a good point in that Scalia's view is modern in it's reasoning.
Modern as opposed to traditional?

There is no constitutional tradition of confusing the preface with the operative language of the amendment. There is a tradition within opponents of a proper reading of the amendment of using the preface as a limitation on the stated right.

That Winkler considers Scalia's correct reading of english to be distinctly modern only discloses the error Winkler considered to be the norm -- it is not primarily a comment about Scalia.

To the degree opponents of a grammatical reading had a tradition within law school faculty and other ideological opponents of the 2d Am., I would not count on a mere SCOTUS decision foreclosing the use of any argument, including but not limited to misuse of the preface. Stare decisis is not something that will stand in the way of any court determined to reach a result directly contrary to a predecessor court. On a different issue, the SCOTUS overruled the result in Bowers v. Hardwick less than two decades after reaching that decision.

No victory is permanent.

Last edited by zukiphile; March 18, 2009 at 07:54 AM.
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