View Single Post
Old September 25, 2012, 08:23 AM   #7
zukiphile
Senior Member
 
Join Date: December 13, 2005
Posts: 4,439
Quote:
Originally Posted by KyJim
Posner argues that "most professional historians reject the historical analysis in Scalia’s opinion" and accuses Scalia of hypocrisy by extolling the virtue of a preamble of a statute to divine intent while ignoring the preamble to the Second Amendment, "A well regulated Militia being necessary to the security of a free State.” Posner states, " The preamble implies that the Second Amendment . . . is not about personal self-defense, but about forbidding the federal government to disarm state militias."
At a grammatical level, I don't see how Posner's point survives scrutiny. While a curious construction, like the latin supine mirabile dictu, there is no because, since or even a whereas in it. Posner's inference that the amendment is "...about forbidding the federal government to disarm state militias" is his own inference, not an implication of the language of the amendment itself.

Certainly, Sup Ct jurisprudence also involes politics, public policy and use of other case law, but building on flawed grammatical interpretation seems a bit of a cheat. Moreover, accusing Scalia of ignoring the preamble to the 2d Am. appears to be little more than an accusation that he hasn't adopted Posner's inference.

Textualism is not the first, last and only word in COTUS interpretation because it can't resolve every question. However, reasonable fidelity to text isn't too much to ask of a body tasked with resolving constitutional disputes.

Quote:
Originally Posted by Aquila Blanca
So by Posner arguing that the original intent was to prevent disarming the militia, he is in fact arguing that the original intent was to not disarm the populace.

I can live with that.
Emphasis added. I don't think that is Posner's argument, since he relies on his inference that the amendment is "about" state militias, not general militia populations.

What this means for Heller is that the holding is subject to quick reversal if and when the court's composition changes.

Last edited by zukiphile; September 25, 2012 at 08:41 AM.
zukiphile is offline  
 
Page generated in 0.03315 seconds with 8 queries