[81alum]

Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and 59er arms.

Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient.

I think his parsing of the two clauses of the amendment is quite contorted, and of course the S.C. agreed with me and not Justice Scalia (that the first half of the amendment limited the second half of the amendment) for the better part of a century.  But supposed I accept for the sake of argument that Scalia's originalism does prove that the 2nd amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") does not limit the scope of the amendment as the Supreme Court previously thought, what then?  If we are solely concerned with what was truly the original meaning, wouldn't the 2nd amendment only apply to the kinds of arms that existed on the date that the 2nd amendment was passed?  Is this the right to carry flintlocks?

Scalia directly responds to this argument, but notice what argument he makes:

  Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

His response is not an argument at all.  Scalia says only that "we do not interpret constitutional rights that way."  Of course we don't.  And that is exactly why originalism doesn't work.  He just as much as said that "we do not interpret constitutional rights using originalism."  Except he does.  Except for when he doesn't.  He seems to be all in favor of a living breathing constitution when it helps him make the case that modern weapons are covered by the 2nd amendment, but he is an originalist when he is seeking grounds for ignoring the prefatory clause.

[81alum]

Take a look at Scalia's opinion in the 2nd Amendment case, District of Columbia v. Heller. That opinion is loaded with references to 18th century dictionaries, statutes, treatises, news articles, letters, essays, and so forth. Scalia uses those sources to determine the 18th century understanding of the right to keep and 59er arms.

Well, his contorted reasoning in Heller is more reason for me to doubt the utility of his originalism, which he seems to assert when convenient and to drop when inconvenient.

I think his parsing of the two clauses of the amendment is quite contorted, and of course the S.C. agreed with me and not Justice Scalia (that the first half of the amendment limited the second half of the amendment) for the better part of a century.  But supposed I accept for the sake of argument that Scalia's originalism does prove that the 2nd amendment's prefatory clause ("A well regulated Militia, being necessary to the security of a free State") does not limit the scope of the amendment as the Supreme Court previously thought, what then?  If we are solely concerned with what was truly the original meaning, wouldn't the 2nd amendment only apply to the kinds of arms that existed on the date that the 2nd amendment was passed?  Is this the right to carry flintlocks?

Scalia directly responds to this argument, but notice what argument he makes:

  Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

His response is not an argument at all.  Scalia says only that "we do not interpret constitutional rights that way."  Of course we don't.  And that is exactly why originalism doesn't work.  He just as much as said that "we do not interpret constitutional rights using originalism."  Except he does.  Except for when he doesn't.  He seems to be all in favor of a living breathing constitution when it helps him make the case that modern weapons are covered by the 2nd amendment, but he is an originalist when he is seeking grounds for ignoring the prefatory clause.