Interestingly, the issue of gun control decided in District of Columbia v. Heller is a great learning tool for examining the judicial philosophy methodology for understanding the purposes of the Constitution based on perceiving the Constitution as the so-called Framers, understood it. This is the core principle of "Originalism." Originalists claim to understand the meaning of the Constitution as it was understood by the "Framers," that is the white, wealthy, males who wrote the Constitution. As it was said in Sicario, Medellin referred to a time rather than any one individual. So the metaphor of Framers. The actual signers of the Constitution lived in an mental atmosphere that was composed of local government actors as well as national level actors and institutions. State versus Federal government. At the time the Constitution was written many states had already written State Constitutions under the coalition the Constitution replaced. Many of the signers of the national Constitution helped write their state ones; Thomas Jefferson being probably the most well known – he wrote the Virginia state constitution. There existed an intellectual milieu that Americans could agree on. One of the mostly widely discussed issues during colonial and early United States political maturation was the discussion over the obligations and rights required for an independent militia, or state based militias. The idea of the local militia as a semi-professional militarized force fielded from the local population. So the issue of gun ownership, who owned guns? Who was required to own guns? What gun owners were required to do? When gun owner/militia men were required to carry their weapons, What kinds of weapons and who was required to posses them. There is a prolific literature around the issues raised by the 2nd amendment written at the time the Framers are writing the Bill of Rights. Then there is the secondary literature which presents a meta-narrative on the meaning of both the 2nd amendment, the meaning of a militia, the meaning of "arms," the actual grammatic structure of the Bill itself. Although it seems awkward to us, is a rhetorical device widely employed and widely understood which defined which is the subordinated clause. As we'll see, the case can be made that the second clause is the operative clause in this construction and the first clause is subordinated to it. This type of cultural norm needs to be incorporated in the philosophy of Originalism.
Let's accept that District of Columbia v. Heller established the right of citizens to own guns. People in the US now have the right to own guns for the purpose of self-protection. This is the Scalia majority ruling in 2014 (http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_supreme_court_doesn_t_want_to_touch_the_second_amendment_this_term_here.html) .
Let's further agree that "guns" is a term that includes semi-automatic versions of military rifles, hunting rifles, all sorts of pistols, any that can be described of a projectile weapon, it shoots a bullet or something similar. Because Scalia, who wrote the opinion claimed he adhered to the Originalist methodology of interpreting the meaning of the 2nd amendment we can compare his reasoning and see if it follows Originalist methodology. Does Scalia really understand the Farmers state of mind when they wrote the 2nd amendment.
We accept this conclusion we can look at the claims of Originalism and compare them to what adherents of this methodology actually do. How they actually substantiate their reading of the Constitution based on their understanding of how a judicial/political representative would view the issue at hand. Claiming that we can understand the mental life of a person in the past is hubristic at worst and misleading at least. To understand the Framer's political social world Originalists claim they peruse writings extant during the Framers era, say 1720s through the 1820s, the Framers generation. It is that intellectual milieu that the Framers understood what they were doing. This social understanding is heavily influenced by the English and French Enlightenment. The antipodes of Enlightenment thinking is represented by the difference between John Locke and Jean-Jacque Rousseau. English empiricism traces its epistemological foundations to Locke, German Romanticism to the more irrational Rousseau.
The American tradition follows the British rather than the so-called Continental schools of thought which are given more to deduction rather than induction; theoretical sociology or empirical sociology? Habermas or ??? some empiricist. We will examine the ideological discourse over the role of the militia and the ownership of, essentially muskets or rifles, usually at this time flintlocks, either smooth bore or rifled, but all were muzzle loaded. While there were handguns, most of the discussion of gun ownership related to participation in the state militia and so the discourse is around long barreled firearms. The public discourse had very little to say about private gun ownership. Gun ownership was ubiquitous throughout the colonies. It was a practice imported from Europe. In the English colonies guns were used for both hunting and self and community defense. They were encroaching on Amerindian land and attacking Amerindian towns and villages. Amerindians attacked back killing settlers on the semi-settled perimeters and sometimes penetrating significantly in colonial society many times driving European back or stopping it for extended periods of time.
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