re: #57 KGxvi

The fun part is when you get arguments between originalists who believe in original intent vs originalists who believe in strict construction. Original intent lets you consider outside sources. Strict construction is “bound by the four corners of the document.” Thomas, I think, is more of an original intent originalist. Scalia was notorious for going back and forth on which approach he used, mostly because he was much more outcome oriented than Thomas, who tends to be more process oriented.

It has it’s place in jurisprudence, in large part because it is useful to know the origins of certain laws before considering all the history that came after that law was passed. But to simply say “this is what it meant in 1805 so that is what it means now” is incredibly lazy.

Speaking of Scalia being outcome-oriented, how is his opinion in Heller consistent with any kind of originalism?

The founders clearly didn’t intend an individual right to keep and bear arms unconnected in any way with militia service, nor is that what the text of the second amendment says.

IMO a much more honest way to get to the result in Heller is to assert an unenumerated right to self-defense/individual RKBA that suffices to defeat a total handgun ban as DC tried in that case.