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Response to elleng (Reply #5)

Mon Jul 30, 2012, 08:02 AM

69. The problem with "originalism," as I see it, is how it regards the Constitution in isolation

... from the context of the times. I'm a systems wonk -- having made a career of analyzing and diagnosing systems both automated and behavioral/organizational. I have never been able to gain my in-depth understanding of any system without a thorough understanding of the relevant elements of the context within which the system operates. The mere distinction between exogenous and endogenous events is premised on that comprehension.

For example... to understand the 2nd Amendment, we must steep ourselves in a comprehension of the times in which it was established. No government of the time possessed weaponry of any kind that wasn't also, even to a greater extent, in the hands of private individuals. Indeed, "government" itself was, in many instances, embodied in individuals called 'monarchs.' There were individuals and collections of individuals on the world stage who possessed weaponry of even greater aggregate power than many 'governments' of the time. (Think "privateers." Think Barbary Coast.) Further, governments had very limited ongoing resources completely dedicated to and under the control of that government. Standing armies in peacetime were skeletal. Local and regional governmental power (government was distributed, much like a franchise) was typically wielded by proxy. In such a context, anything even approximating a 'democratic' or 'populist' form of governance necessitated private ownership and control of weaponry of all kinds, to be subject to activation (even by conscript) in the event of a security emergency that would be inherently obvious to the populace, without significant dissent. The manpower for addressing any such emergency was the populace itself. Anything else was inconceivable.

To respect the 2nd Amendment (and I do) is to regard the contextual conditions within which it was established as also either desirable or necessary in today's culture. Some, even though 'desirable,' are impossible -- level of weaponry technology, for example. It is no longer the case that all weaponry possessed by government is also possessed by private individuals. Nukes and aircraft carriers are obvious examples. We should very carefully note, however, that private corporations do possess such weaponry. The 'privatization' of far too much of government military power has resulted in a recent increase in the extent to which such WMD are in private (corporate or conglomerated) hands. Thus, it makes sense to have limits on the power of weaponry covered by the 2nd Amendment ... i.e. nukes, howitzers, bombers with payloads, and fully automatic rifles and pistols. It does NOT, however, make sense to fail to have a Universal National Service policy that engages every adult between the ages of 18 and 65 in a "well-regulated militia." (The Swiss model is but one example.)

But that is a whole 'nother discussion. We're dealing with 'originalism' and context. It is entirely understandable that the Founders weren't sensitive to government violations of individual privacy beyond those involving speech, religion, the home, and testimony. The technology just didn't exist to monitor and intrude beyond those excesses so often seen to be done by tyrants of the time and in recent history. Personal privacy was, therefore, an unenumerated right upon which individual popular sovereignty (i.e. democracy) itself rests. Scalia is being appallingly disingenuous and betraying his fascist biases.

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LineLineReply The problem with "originalism," as I see it, is how it regards the Constitution in isolation
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