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loquitor: thanks. i understood the moves scalia made--and the arguments he mustered for them---and i think this notion of "original public meaning" is chimerical, a space for projection and not something that can be coherently reconstructed--and like i said, if you think about it, it actually creates trouble for his claim in a way in that, like i said, i pushes you toward some notion of reception of claims in 1791, which is linked to some sense of context--which scalia's argument presupposes was singular. all i pointed out was the obvious problem, which you can get to without having to follow scalia, but just by thinking about the idea of reception context 1791 style--there were urban and rural populations--from which follows--can you assume the same presuppositions as to right to bear arms obtained for each---which comes down to "did these populations as a matter of course carry guns"--to which the answer is yes and no, rural and urban.
the other argument--that the right to bear arms int he context of a militia presupposes a broader, unstated right to bear arms seems stronger logically, but it also strays quite far from the text---and since that interpretation is basically made coherent via the notion of reception/"public meaning"--problems with the latter creates problems for the former.
i am looking at this via my historian self, btw, and i bring alot of scepticism to the whole idea of strict construction because of the problems that attend trying to make anything like a strong claim to "public meaning" in 1791--and this is the easy one--the notion of "original intent" is ludicrous---not so much as an idea (you can string together the words, the idea exists) but as a frame that you can establish firmly enough to use as a way of interpreting law, particularly if those interpretations are to break with "activist" precedent.
but it's likely that looking at the same arguments from a lawyer's perspective would focus on different things, and i'm not sure of the extent to which problems of historical method impact upon strict construction arguments for a lawyer---i would think they would, but i'm not sure.
i should say that i found the historical development of the argument through the 19th century to be interesting and well done---so the problem is in the premise. the demonstration i liked, even. scalia has good staff people, i take it, good researchers. and it's possible to find a demonstration interesting without buying the logic that informs it too, as an aesthetic matter.
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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear
it make you sick.
-kamau brathwaite
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