(08-12-2019 06:08 PM)tanqtonic Wrote:  Certainly some interpretation is necessary --- what is an 'arm'? Heller is replete with this. And that interpretation squares with the actual words in the 2nd Amendment.

It is one thing to interpret a word, and another thing entirely to make up a fundamental right that has zero basis in the Constitution in an explicit manner.

FBO seemingly thinks that they are equivalent.

If the SCOTUS found themselves determining that a fundamental right to operate a crocodile farm existed (i.e. the equivalent of the right to an abortion, since there is really no basis in the explicit words of the Constitution), I dont think anyone would believe that that right would be held as an equal basis to, say, the core freedom to associate under the 1st Amendment, or the core right not to be forced to self-incriminate under the 5th.

There is a huge difference between 'interpreting the bounds of an explicitly granted right' (i.e. what are the bounds of the term 'arms' in the 2nd, what is 'speech' in the 1st, what are 'houses, papers, and effects' in the 4th) and 'interpreting a brand new fundamental right into existence' (i.e. a fundamental right to an abortion)

If you cant see that, well so be it. But, to be honest, that is the crucial difference between 'originalism' or 'textualism' and proponents of the 'living Constitution'.

As for the 'shall not be infringed' -- under Heller something has to fit the rubric of what would be considered an 'arm' to have that protection. Under Heller, the term 'arm' was found to be 'weapons that are common and ordinary usage within the populace' (or somefink to that effect. M60 machine guns are not 'common' or in 'ordinary use' in the normal population; as are not any automatic weapon, an operational tank with gun, a howitzer, a land mine, or a nuclear bomb. Those types of items are free from the protection against government infringement.

So the interpretive step lies not with 'shall not be infringed', it actually lies in what falls inside or outside the roof.

And further, the delineation of 'common use' was not made by Heller --- that distinction was made 70 years earlier in the Miller case from 1939.

I can see the difference you're pointing out regarding the explicit rights and the enumerated rights.

I was pointing out that your comment about "shall not be infringed" still requires interpretation. You can dodge slightly and say that it's really the word "arms" that is being interpreted, but that just deflects away from the overall point, which is even textualists realize that interpretation of the Amendments is necessary, and the Constitution and it Amednments are not as cut and dry as many textualists often like to suggest they are.