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Re: Heller v. D. C.
Let's take a close look at Scalia's pathetic attempt to ascertain the meaning of the word "arms" in the Second Amendment.
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....we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today.
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Scalia didn't say he was going to go by the 18th Century meanings of words. He said he was going to go by the normal and ordinary use of words by ordinary American citizens.
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The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson).
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That was only one of the eleven meanings Johnson's Dictionary gave for the word "arms." How did Scalia ascertain that the most normal and ordinary use of the word "arms" by ordinary American citizens of the founding generation was the one that defined the word as “[b]weapons of offence, or armour of defence?"
According to Samuel Johnson, that particular meaning was deduced from the way Alexander Pope used the word in his translation of Homer's Iliad. Alexander Pope hardly qualifies as an ordinary American citizen of the founding generation.
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Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771);
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That was just one of the two meanings of the word, according to Cunningham. Also, it was given that meaning by an English Court in the 1600's. Scalia never said the was going to use "subject matter" to ascertain the meaning of the Second Amendment.
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see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
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Webster gave four other definitions of the word. Why didn't Scalia use one of those?
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The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.”
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Justice Scalia said he was going to go by the normal and ordinary use of words by ordinary American citizens. Timothy Cunningham wasn't even an American.
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See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104
(J. Cushing ed. 1981 (pt. 1));
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How does the use of words by the Delaware legislature to make a law qualify as normal and ordinary use by ordinary Americans?
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see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”).
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How does the use of words by state courts in judicial opinions qualify as normal and ordinary use by ordinary Americans?
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Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler,
The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added).
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John Trusler wasn't even an American and none of the examples he used were taken from the normal use of words by ordinary Americans.
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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.
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I'd like to see some evidence that ordinary American citizens of the founding generation normally and ordinarily used the word "arms" to refer to things not even in existent at the time.
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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),
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I better not find a case where you didn't follow that principle.
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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.
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That's nice. However, you said you were interpreting the word "arms." Does the word mean "weapons of offence, or armour of defence", "any thing that a man wears for his defence" or some other meaning?
How is a trial judge, using that crap, supposed to determine whether an instrument, such as a lance with its point covered with a deadly strain of flesh eating bacteria, is, or isn't, "bearable arms?"
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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?
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