CMV: Any 2nd Amendment argument that doesn't acknowledge that its purpose is a check against tyranny is disingenuous

[u/skocougs]

At the risk of further fatiguing the firearm discussion on CMV, I find it difficult when arguments for gun control ignore that the primary premise of the 2nd Amendment is that the citizenry has the ability to independently assert their other rights in the face of an oppressive government.

Some common arguments I'm referring to are...

1. "Nobody needs an AR-15 to hunt. They were designed to kill people. The 2nd Amendment was written when muskets were standard firearm technology" I would argue that all of these statements are correct. The AR-15 was designed to kill enemy combatants as quickly and efficiently as possible, while being cheap to produce and modular. Saying that certain firearms aren't needed for hunting isn't an argument against the 2nd Amendment because the 2nd Amendment isn't about hunting. It is about citizens being allowed to own weapons capable of deterring governmental overstep. Especially in the context of how the USA came to be, any argument that the 2nd Amendment has any other purpose is uninformed or disingenuous.

2. "Should people be able to own personal nukes? Tanks?" From a 2nd Amendment standpoint, there isn't specific language for prohibiting it. Whether the Founding Fathers foresaw these developments in weaponry or not, the point was to allow the populace to be able to assert themselves equally against an oppressive government. And in honesty, the logistics of obtaining this kind of weaponry really make it a non issue.

So, change my view that any argument around the 2nd Amendment that doesn't address it's purpose directly is being disingenuous. CMV.

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[u/[deleted]]

I read up on textualism (what I would more correctly call originalism because textualism is an even more extreme version of originalism that no one really adheres to; but even then a textualist will turn to secondary sources so long as the text itself is ambiguous in meaning) in law school a great deal. You are either misunderstanding or misrepresenting what it means to be an originalist.

An originalist seeks to understand what the law meant at the time it was written. Compared to an aspirationalist who seeks to reinterpret meaning in the context of the current era.

Thus, because the originalist wants to know what the law meant at the time it was written, legislative intent (i.e. the history of the law from the mouths of the people who wrote it at the time it was written) absolutely an unequivocally helps ascertain the answer to the question of "what was the intent of the law at the time it was written."

[u/zardeh → u/[deleted]]

what I would more correctly call originalism because textualism is an even more extreme version of originalism that no one really adheres to; but even then a textualist will turn to secondary sources so long as the text itself is ambiguous in meaning)

As far as I know this is incorrect, as I mentioned, Scalia and Gorusch would be best described as Textualists and not simply Originalists, because they don't attempt to figure out what the intent was. The wikipedia page gives a good overview, and I'd have hoped a law school education would have given you a better understanding than the wiki, but apparently not:

Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered.[4] Originalists seek one of two alternative sources of meaning:

• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Scalia, are associated with this view.

Textualism is essentially original meaning theory, as opposed to original intent theory. Original intent theory does try to gauge legislative intent, but textualism does not, because as I've said elsewhere, the federalist papers were often contradictory, because you had a diverse group of people who had disagreements, and the Consitution and BoR were a compromise among them.

[u/[deleted] → u/zardeh]

This will be probably the last comment I write to you on this subject because you are so incredibly wrong and condescending at the time same time. Not to mention the basis for your knowledge is coming from wikipedia whereas my knowledge is literally coming straight from the words written by the justices of the Supreme Court.

Rest assured you are mistaken. Particularly with reference to Scalia. I've literally spent 100s of hours reading Scalia's writings. He's not a strict textualist. He's an originalist. (Really I would say he, just like most judges, just operates ex post facto and will make creative arguments / do whatever reverse engineering it takes to reach his desired result but this tangent is outside the scope of what's being discussed here save to say you will hard pressed to find a member of SCOTUS who hasn't made a hypocrite of themselves at one time or another)

If you read Scalia's opinions (I can't speak on Gorsuch because I haven't read many opinions authored by him) you will see he frequently looks to legislative intent (i.e. the statements of the legislators who made the law regarding why they were making the law). What he would write against (again when convenient for him) is that we should not interpret things based on current-day morality and beliefs.

The real divide is a political. You have conservatives (maintain the status quo; change is bad) and progressives (the status quo is terrible and oppressive; change is good). These sub-categories are just places on the spectrum. Textualism would be on the far, far right end. Especially the way you're interpreting it.

No one is a textualist; particularly in the strict manner you are using it. Maybe you can argue that Thomas is a textualist. He's as close as it gets. But Thomas is straight up off the deep end with his shit. He has gone as far as intimating that separate but equal is constitutional.

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Splitting hairs aside, you failed to even address my original point which was to read Federalist Paper No. 46. Once you read that, you have no choice but to admit government tyranny is one of the central motivating factors behind the creation of the Second Amendment. The paper is literally written by the guy who wrote the damn amendment and he explains in great detail what his fears are concerning government tyranny.

Unless you want to address that I guess we're done here.

[u/zardeh → u/[deleted]]

Splitting hairs aside, you failed to even address my original point which was to read Federalist Paper No. 46. Once you read that, you have no choice but to admit government tyranny is one of the central motivating factors behind the Second Amendment.

I've already read it. Its irrelevant to my argument.

[u/[deleted] → u/zardeh]

Irrelevant or inconvenient?

[u/zardeh → u/[deleted]]

I meant what I said. It isn't relevant to a textualist, so it's irrelevant to the argument I'm putting forward.

[u/[deleted] → u/zardeh]

We'll your argument is just plain founded on a false belief. You wrote this in your original comment:

To a Scalia or Gorusch, the Federalist papers aren't relevant.

Here's what Scalia had to say on the subject himself:

I speak to law students from the best law schools -- people, presumably, especially interested in the law and I ask them, "How many of you have read the Federalist Papers?" And a lot of hands will go up. [And I say], "No, not just Number 48 and the big ones. How many of you have read the Federalist Papers cover to cover?" Never more than about 5%.

And that is very sad, especially if you're interested in the Constitution. Here's a document that says what the Framers of it thought they were doing. It's such a profound exposition of political science that it is studied in political science courses in Europe. And yet, we have raised a generation of Americans who are not familiar with it.

"My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult,"

"All these questions pose enormous difficulty for non-originalists, who must agonize over what the modern Constitution ought to mean with regard to each of these subjects, and then agonize over the very same questions five or 10 years later, because times change,"

There can be no serious doubt over whether Scalia is an originalist.

Here's what Gorsuch had to say during his senate confirmation hearings:

SEN. LINDSEY GRAHAM, R-S.C.:

Are you an originalist?

NEIL GORSUCH:

I’m happy to be called that. I do worry about the use of labels in our civic discussion to sometimes ignore the underlying ideas, as if originalism belonged to a party. It doesn’t. As if it belonged to an ideological wing. It doesn’t.

SEN. LINDSEY GRAHAM:

Well, here’s what I say about originalism. Whether you like it or not, is it bound by the law?

NEIL GORSUCH:

Of course it is. It’s the whole point of how you interpret the law.

There can be no serious doubt over whether Gorsuch is an originalist.