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Old September 24, 2012, 07:47 PM   #3
Aguila Blanca
Senior Member
Join Date: September 25, 2008
Location: CONUS
Posts: 11,108
As long as neither of them considers the Constitution to be a "living document" that should be interpreted according to what Europe thinks of it today, I see no problem. Let them duke it out.

Personally, I think the correct approach is a mix of "textualism" (i.e. a law says what it says) and original intent. That is, I believe that laws should be written so that those of us who are supposed to comply with them (remember, "Ignorance of the law is no excuse") can read the law and figure out what we need to do to be in compliance. But ... I also think that very old laws (and 200+ years is old) need to be read based on what the words and context meant at the time the law was written. Arguing about the militia clause in the 2nd Amendment is stupid (IMHO). Grammatically, it is now and was at the time ancillary to the core of the right. Posner doesn't seem to "get" that -- or else he's pretending not to just to pick a fight. Historically, it makes no sense to argue that the RKBA was at that time intended to prevent disarming the militia, because at the time the militia was every able-bodied male. 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.
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