TOM THE DANCING BUG: Judge Scalia Spans the Time/Space Continuum!

PREV • INDEXNEXT

1025cb scalia - originalism.jpg
Discuss

77 Responses to “TOM THE DANCING BUG: Judge Scalia Spans the Time/Space Continuum!”

  1. cubby96 says:

    It is also illegible in Firefox 3.6.13

  2. MrJM says:

    The framers were wise in their generation and wanted to do the very best possible to secure their own liberty and independence, and that also of their descendants to the latest days. It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies. At the time of the framing of our constitution the only physical forces that had been subdued and made to serve man and do his labor, were the currents in the streams and in the air we breathe. Rude machinery, propelled by water power, had been invented; sails to propel ships upon the waters had been set to catch the passing breeze — but the application of stream to propel vessels against both wind and current, and machinery to do all manner of work had not been thought of. The instantaneous transmission of messages around the world by means of electricity would probably at that day have been attributed to witchcraft or a league with the Devil. Immaterial circumstances had changed as greatly as material ones. We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.

    – Ulysses S. Grant, Personal Memoirs, Chapter XVI.
    http://bit.ly/GrantOnFounders

    • glaborous immolate says:

      The problem with Grant is

      1) he’s arbitrary. “I shouldn’t be bound by the law” Chevron, Enron, Reagan, Bush, JFK, none of them want to be bound by law.

      2) The founder’s prerogatives AREN’T irrevocable. There is an amendment process. Could we have had prohibition WITHOUT an amendment? because of evolving standards of decency?

      3) The founders lived in an age where travel and communication became faster. Every technological improvement in travel or communication makes travel and communication faster or easier or cheaper. The fact of change was understood by the founders, and the wrote in anticipation of it.

      4) Grant’s argument is a kind of originalism anyway. “They originally didn’t intend for us to care about what they thought”

    • Snig says:

      Very cool quote, thank you.

  3. Boos says:

    Original image size is too small, getting all pixelated. Completely unreadable.

  4. Phikus says:

    It image seems to have been swapped with a low-res version that is illegible at any resolution or in any browser. Dang.

    • Anonymous says:

      It’s fixed now, but “a low-res version that is illegible at any resolution or in any browser” was probably the version for the m.boingboing.net site. This comic is never readable on my phone, and the size is locked so you can’t zoom out.

  5. sapere_aude says:

    Well, like most legal issues, it’s really just a matter of figuring out where to draw the line. And, whenever you’re drawing lines, it’s gonna be controversial; because, unless you’re drawing those lines along natural boundaries, the positioning of those lines will always look arbitrary. In the gun debate there are only two “natural boundaries” where you could draw the line: ban everything or permit everything. If you draw the line anywhere else it will seem arbitrary, and will certainly be contested by those who find themselves on the wrong side of that line. But there are many reasons why we can’t ban all guns; and (in spite of what the NRA and gun rights absolutists might claim) there are also many reasons why we can’t permit unlimited access to, and unrestricted use of, any weapon in existence. So, we have little choice but to draw the line somewhere between these two extremes; and, no matter where we draw that line, it will inevitably seem arbitrary, and will be contested.

    But that’s exactly what our political and legal systems were designed to deal with. The political system draws the lines; and, if people contest those lines (which they will), the legal system arbitrates, and makes the necessary adjustments. The legislature represents the interests and preferences of the community, while individuals (and their lawyers) represent their own Constitutionally-protected individual rights, and the courts must referee between them, trying their best to accommodate both community interests and individual rights. The system isn’t perfect, of course; and the courts sometimes get it wrong. And, in a country of over 300 million people, there is no single solution that could possibly satisfy everyone. But, on the whole, the system works, and it works pretty well.

    As for the TSA’s overly intrusive screening policies, the courts haven’t definitively ruled on the matter yet; so the issue is far from settled. I’m hoping that the courts will ultimately strike down these policies as unconstitutional, not just because they violate individual rights – which, as I’ve said, are not unlimited – but because these policies are unreasonable (remember that the Fourth Amendment prohibits “unreasonable” searches and seizures, not searches and seizures that the courts deem to be reasonable). As I’ve said, the law must strike a balance between the Right and the Reasonable. In my view, the TSA’s screening policies fail on both accounts. So, hopefully, the courts will recognize this, and will order the TSA to adopt a more reasonable approach to airline security – one that is more sensitive to individual privacy rights.

    Like you, I am concerned about the growing erosion of individual liberties in this country. But I recognize that much of this has to do with the ever-increasing population density of our communities, which pushes people closer and closer together, making it virtually impossible for anyone to do anything that doesn’t affect his or her neighbors. Gone are the days when the average American could do pretty much anything he or she pleased on his or her own property without having to worry about the neighbors calling the cops (or the landlord, or the homeowners’ association). The more closely we live together, the more limited our individual rights must become in order to accommodate the equal rights of others. When I lived on a farm, I could take my rifle outside and shoot it, pretty much whenever I wanted, without having to worry about endangering, or even frightening the neighbors. Now that I live in the suburbs, I can’t do that anymore. That’s the price you pay for living in a community with other people. And it would be unreasonable for me to insist that I have a right to do in the suburbs anything I had a right to do on the farm.

    What the gun rights absolutists (or, for that matter, the free speech absolutists, or the property rights absolutists, or the privacy rights absolutists) fail to acknowledge is that other people have rights, too; and all rights must be exercised in a way that respects the equal rights of others. You have a right to own, carry, and use guns so long as your guns do not endanger other (law abiding) members of your community. But the other members of your community, acting collectively through the political system, do have the right to place reasonable restrictions on your individual gun rights in order to insure that your guns do not pose a danger to others. However, as I said earlier, the courts will have to arbitrate between your individual rights and the rights of other members of your community in order to insure that the community doesn’t trample your rights, or you theirs. That’s how the system works; and, although it isn’t perfect, it has thus far worked better than any other system that has ever been tried.

  6. Anonymous says:

    You missed an opportunity for an even funnier punchline, as “Chicago”, in Italian, literally means “I’m pooping here.”

  7. dragonbait1 says:

    People are ALL people, women, gays, etc
    Speech/press is ALL speech, internet, press, streetcorner.
    Arms are ALL individual weapons, Swords, knives pistols, rifles (but not cannons etc)

    If the joke here is that Scalia changes his concept of orignality based on the case, fine. But if the artist is trying to propagate the canard that “the right to keep and bear arms” only applies to muzzleloaders then freedom of the press only applies to printing presses and not TV, the internet etc.

    RGB

    • Anonymous says:

      Ruben is not saying that the 2nd Amendment only refers to muzzle-loaders. He’s saying that if Scalia wants to be an originalist, it cuts both ways. Just because the framers didn’t know what “gays” were doesn’t necessarily mean that they didn’t want to protect their rights; likewise, just because the framers were unaware of assault rifles doesn’t necessarily mean that they didn’t want to allow people to have them. It’s up to guys like Scalia to interpret what was meant on a case-by-case basis using common sense and settled law, and not follow some kind of blind ideology that leads to absurd contradictions.

    • Anonymous says:

      Nice try dragonbait, but no.

      1. Internet as a way for many people to choose to hear my thoughts.
      2. AK-47 as a way for many people to feel my bullets.

      These are rather different in quality, not just quantity. Surely you must see this.

    • Mister44 says:

      re: “Arms are ALL individual weapons, Swords, knives pistols, rifles (but not cannons etc)”

      IDK – IIRC private cannons were owned and used in the Revolutionary war and the Civil War.

      Cannoneering(?) is still a hobby now. I am not sure what paper work is involved (probably classed as a destructive device) but the pharmacist at the Wal-Mart I used to work at did it on the weekends. They used muzzle loaders or breach loaders converted to muzzle loaders.

      Anyway – I agree with everything else. I am not sure who it was, but I have seen the 2nd Amendment broken down piece by piece, explaining what the language meant at the time it was written (what ‘militia’ meant to them, what ‘well regulated’, etc. It was written, like, 100 years ago! Who can understand it?).

      • Anonymous says:

        Actually, Scalia explicitly says (I heard him say it in a speech) that cannons were not covered by the Second Amendment right to bear arms. And that today cannons, and analagously, tanks, are not covered.

        The reason being that it’s not possible to “bear” a cannon or a tank, so the right to bear arms is limited to weapons small enough to be borne by a person.

        While I think that Scalia’s claim about the Founders’ original intent is debatable, and impossible to prove without time travel (as the author of the comic notes), I think we have to recognize that it at least contains some internal limits, and is not an unlimited right for individuals to possess all kinds of military weapons, even in Scalia’s formulation.

        • Mister44 says:

          You’re right, and I don’t think I personally would extend cannons to the 2nd Amendment, just that you probably could make a case for it.

          Also thanks to sapere_aude and others for their civility.

          I think on my last post I neglected to say and wanted to mention: I am for some restrictions. I think we have appropriate restrictions in place for most places, and a few overly restrictive laws in others. I also hope I conveyed why some people are automatically against more laws than what we have now.

  8. Anonymous says:

    Now “Tom the Dancing Bug” has two Idiot Time travelers.

  9. Church says:

    And now it’s fine. Good going, anonymous web monkey!

    Also, deep-dish isn’t pizza. That is all.

  10. benher says:

    Tom, it’s your comic (which I love) and you are an artist and can feel free to do as you please with it.
    You certainly don’t need my permission…

    but I have to confess my disappointment, with the lack of a Percival Dunwoody crossover whose possibilities seem so evident in today’s strip.

  11. Ernunnos says:

    “When you said ‘Freedom of the press’ you meant television broadcasters and bloggers, right?”

    “What’s a blogger?”

  12. pjk says:

    Madison: “No, I’m talking about militias. What do you mean, a right for INDIVIDUALS?”

  13. sapere_aude says:

    If anyone is interested, here is a fascinating video of a discussion between Justices Scalia and Breyer over their contrasting views of Constitutional interpretation: http://fora.tv/2006/12/05/Justices_Stephen_Breyer_and_Antonin_Scalia

    While I personally tend to agree more with Breyer’s judicial philosophy, I’ve got to admit that Scalia makes a good case for his approach to interpreting the Constitution. Although it’s easy to caricature Scalia as nothing but an ideologue, the truth is that the man is an intellectual who writes very well-reasoned judicial opinions (and lively dissents), which are always interesting to read. I often disagree with his conclusions – in part because I don’t share his political values and in part because I don’t fully buy into his approach to Constitutional interpretation – but I must concede that he always makes a strong argument in support of those conclusions. When you read his judicial opinions, it’s hard not to develop a respect for his legal mind, even if you don’t respect his political proclivities.

  14. hohum says:

    Comic is absolutely broken on Lynx.

  15. Anonymous says:

    Both “Origionalism” and the “Living Document” crowd come from the root malfunction that nobody in office wants to go into the job of keeping and maintaining a constitution. The last high constitutional amendment rate was in the 1960′. As such the US constitution has not been able to adapt to the times, and as such having not been maintained, it is not kept. I propose a new camp of Constitutionalism, the Variable camp. Variablists push for the Constitution to be amended per the needs of the times that a constitution must be kept in.

    Think About It.
    Anonymous

    • Anonymous says:

      >Both “Origionalism” and the “Living Document” crowd come from the root malfunction that nobody in office wants to go into the job of keeping and maintaining a constitution.

      I think plenty of people want to amend it, but it’s just too darn hard. 2/3′s of both houses of congress, followed by 3/4′s of the states? Or 2/3 of the states proposing a (potentially runaway) constitutional convention? It’s too hard to do anything controversial.

      In response to the originalism argument (Scalia cartoon) the opposite is to just make the document mean whatever you want. For example (and I’ll preface this by saying that I’m staunchly pro-choice), in 1973 the SC said that the Constitution guarantees a woman’s right to abortion the first trimester, but not in the third trimester. This is despite the fact that the document says not a thing about either abortion or trimesters. That’s called “making stuff up”.

  16. HJB says:

    Justice Scalia is and oxymoron!
    RVC

  17. Anonymous says:

    Poor Scalia. Nowhere in time, text, or intent will he find a prohibition against the government imposing a fine on those failing to purchase health care.

  18. bobthecitizen says:

    first off kiddies, “militia” and “military” had different meanings then.

    “military” was bahavior, as in “Joe dresses military” and militia meant “military” as that is what they called the army back then.

    Second fact, the second ammendment, if you read the founding father’s debates, was designed to make the citizenry the standing army, to assure that “whatever the current arms of the day” were possesed, and was to keep the government in order. The idea of a standing federal army was horrendous to them and as Washington said “will surely lead to any country so foolish’s downfall”.

    I will happily reduce my arms to single shot black powder when our army and police do. WHat a heaven that would be, our oppressive, violent imperialist military being essentially disarmed.

    The second ammendment is about revolution folks.

  19. Anonymous says:

    Anyone else distracted by the fact that Scalia is served pizza by an Italian Pee Wee Herman?

    • sapere_aude says:

      No. But I was distracted by the color of Jemmy Madison’s jacket (since Madison had a reputation for habitually dressing in black).

  20. Deidzoeb says:

    NRA and gun-fans would have us assume that everyone in the general population capable of bearing arms was part of the “well-regulated militia” described in the 2nd Amendment. A general population with access to rockets or mortars or cannons would be considered a “poorly-regulated militia”, lacking in regulation, obviously endangering the security of the state. I wouldn’t feel secure if my neighbor owned mortars or Claymoore mines, etc. A general population with access to armor piercing bullets would reasonably be considered part of a poorly-regulated or unregulated militia. The right of the people to keep and bear *some* arms should not be infringed, but limiting the types of arms they can have should be part of *regulating* the militia (i.e. the people, the general population, if you take the view that we’re all potentially members of the militia).

  21. Mister44 says:

    Sorry for the late reply – hopefully you check back.

    “But some firearms – such as fully automatic weapons – are simply not legitimate for civilian use outside of specialty shooting ranges.”

    Full-auto weapons have been pretty heavily regulated since the 30s. Depending on your state, you can still buy them, pay a $200 tax, and wait 1-3mo for the ATF approve your purchase.

    Here is the ‘funny’ thing about it. Until 1986 you could call up Colt or Ruger or whoever and order a full auto version of their guns. But people rarely did. Why? Well first was the $200 tax, then the gun itself was a few hundred more, there was a wait, and finally it was expensive to feed them. So the extra cost wasn’t worth the seldom used feature for most people.

    In 1986 a law was passed that no more NEW full-autos could be registered to civilians. This was supposed to be a poison pill for another bill, but it was signed into law. Now only the rich or very dedicated hobbyist can afford them.

    So anyway – the legit use are the people who like shooting them (and can afford it), and those who like the historical guns.

    I guess I agree with some regulation on the full-auto guns. Though on the other hand, crimes with full auto guns are very, very rare. Best I can gather, there have only been two murders with LEGAL ones since 1988. One was a cop who shot an drug dealing informant, and the other was a doctor who shot another doctor he was stalking. And then there is the fact that many guns can be converted with some basic skills, tools, and time. (Next issue of MAKE, maybe?) Even crimes with illegal ones are very rare. Most of the “AK-47s” on the news are semi-auto clones/versions.

    I guess my point is, they haven’t ever been a real menace since prohibition, which got them restricted in the first place. (And even then, the cause of the violence was prohibition, just like the drug war today.) It wasn’t an issue in 1986, the law was put there to kill the bill. Yes, they have more potential for misuse and are more dangerous in untrained hands, but noobs in Corvettes have cost more lives than full autos.

    re: ” And there are certain places – such as schools, courthouses, and passenger airliners – where civilians should not be allowed to carry guns at all.”

    I would agree with that for the most part.

    “Moreover, there’s no legitimate reason for anyone other than gun dealers and shooting range owners to purchase firearms in bulk, or to stockpile large quantities of weapons.”

    I guess that depends on what makes it a ‘stock pile’. My dad has around 30. Each one does something different and works in a different way. Sort of like you don’t play golf with only one club. Then I know of some people who are collectors. And really, you can only shoot one at a time, having 50 of them doesn’t make you any more dangerous, and actually a good person to have around with zombies in the area.

    So again, while on one hand I see your point, but on the other hand I have to ask if the risk is really there.

    Now – I will tell you why I and others are hesitant about too many restrictions:

    1) It’s a Right and should have the most minimum of limitations.

    2) History has shown what starts as a few restrictions often becomes more and more restrictive over time. (Have you known the gov. to just ‘give up’ power?) This is especially true with ‘registration’. Time, and time, and time again, registration has just lead to confiscation. I could invoke Godwin and point out how the Nazi’s did it to their own people. Instead I will just point out the 18th Amendment. Outlawing alcohol probably sounds ludicrous and absurd today – yet they not only passed a law – the amended the Constitution!

    I do agree there should be some restrictions, such as from felons, or recent domestic violence, or the mentally ill (but as we saw, we need to overhaul our mental health system).

    I would like to mention your use of “legitimate use”. What does that mean – for anything? If I am using something, for its intended purpose in a legal manner, doesn’t that make it legitimate? So why should me owning 100 guns or a full auto my my personal enjoyment or investment be considered illegitimate?

    NO ONE **needs** a car that goes 150+mph unless your name is Dick Trickle. But they are hella fun. Why do you buy one? To get chicks and drive fast. But I could ask, “What legitimate use do you have for that car, when any standard sedan will do every legal thing the sports car will do?” Except the chicks part.

  22. Anonymous says:

    Here’s the Universal Constitution, not just that of America:

    1. Do not do to others you do not want done to you. (a.k.a. “The Golden Rule,” or “The Inverse Reflexive Rule.”)
    2. Do what you want while simultaneously NEVER preventing others from doing the same. (“The Reflexive Rule.”)
    3. Discuss with others when conflicts arise to resolve them, because they inevitably will, and absence of discussion will only enable the continued existence of conflicts. (“The Discussive Rule.”)

    If the laws are followed, you really may do what you wish. That even includes breaking conservation, as described by science. (Yes, REALLY.) But if you get stupid again, it’s back to the hard life, until you get back on track.

    And there you go.

  23. Unmutual says:

    “Also, deep-dish isn’t pizza. That is all.”

    It is clearly some kind of bread based lasagna food.

    Also this comic appears slightly off when viewing in the Nintendo Wii’s Opera Browser. In this one Justice Scalia is only a moderate conservative, please fix!

    • dragonbait1 says:

      Arms are personal, armaments are crew served (like cannon) It seems to me that a reasonable line between rocketry and rifles makes sense. There are some boundaries on all of the enumerated rights (many sane, some crazy) and explosives are makes a good boundary point. I’m not saying no one should have cannons explosives, just that they aren’t covered by the 2nd amendment protections. (that is, the right to bear explosives can be infringed, say by safe storage laws and geographical limitations, insurance requirements and strict liability)

      RE: Pjk
      It doesn’t say the right of the milita to bear arms, it says the right of the people.

      RGB

  24. Mister44 says:

    re: “Rights are not absolute or unlimited”

    I think we both agree there is a line somewhere, but probably disagree as to ‘where’ it should be.

    I think my overall point is that a lot of the restrictions can be more or less arbitrary, and like the new TSA screeners they may make one feel safer with out actually making it so.

    Also take into account the outrage that happens when censorship or attacks on speech or religion happens. Even though both need to have some restrictions, the ALCU and others are rabid in their defense.

    It is probably accurate to characterize the NRA as rabid, but they are actually more open to political compromises than many people.

  25. VICTOR JIMENEZ says:

    “You again?”

    • Yamara says:

      “You again?”

      Scriptkiddie spanners go after Hitler. l33t time travelers are all up Madison’s ass.

      That’s because he’s the best.

  26. ackpht says:

    Deep-dish is the only kind of pizza worth having.

    Thin-crust adherents = rubes and philistines.

    -expatriate Chicagoan living in pizza wilderness of NorCal

  27. Ito Kagehisa says:

    Sorry I wasn’t around to join in, but I think your discussion with Mister44 is one of the most civil and well-reasoned arguments I’ve ever witnessed.

    You have at least one play to emotion in your side of the debate; the idea that guns should never be around schools embodies the normal human glandular instinct to protect children, in our current system where parents are rarely present during the school day. If I am going to be there, I want to have a weapon to protect the children, but if I am not going to be there, I want there to be no weapons present. I’ve met the other parents; I don’t trust some of them to drive safely, much less operate a weapon! I point this out not to discount it – emotions are real, after all – but to make clear the difference between this idea and the ideas that weapons should be banned from courthouses and air transport, which I think have a different basis.

    You, and Mister44, are converging on the same core principle: gun violence is how interpersonal violence manifests in a society that has the technological ability to create guns. Zip guns are trivially easy to construct from grocery store materials, you cannot prevent guns and IEDs from being available to those who would do violence unless you entirely prevent science education. Attempting a cure for violence by restricting guns is a quixotic tilting at windmills – it cannot be done, and it wastes effort and money that could be spent confronting the root causes of such violence.

    I want a world where we can all be armed as much as we want to be, because we are all happy, sane, self-motivated individuals. This is also a quixotic dream, I know, but my impossible dream seems like a goal less subject to perversion by those who wish to exercise amoral power.

  28. Unmutual says:

    I don’t get the controversy over the 2nd amendment.

    It says right there, “well-regulated militia”.

    “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

    In other words people have a right to keep an bear arms within the context that they may be called upon to take action as part of a “well-regulated militia”.

    It is difficult to imagine a “well regulated militia” that is just a rag tag bunch of guy wielding weapons running the gamut from glocks to Dodge Ram mounted M60s.

    The interpretation I see from the right is that if I can invent some kind of deadly weapon then they have a “right” to own it. If I invent a pocket death ray, well the founding fathers figured they had the right to have one of those too.

    There is a whole lot of meta-information around this pertaining to political ideology . . . i.e. I should have the right to bear any kind of arms the state may take up against me . . . but this is not implied in the constitution anywhere.

    It’s also interesting how this has become just about GUNS.

    I mean in many ways, today’s terrorists are as likely to use cyber attacks against you as blow something up. The military employs all manner of non-lethal tech, and it’s also utilizing robots and AI technology. They can strike from the ground, air or sea. Should I be able to fly a robot killing machine all around the Boston Skyline? “Arms” only means weapons or implements of war in a general sense, if it meant “guns” then the word “firearms” would be redundant.

    So second amendment rights should apply to swords, nunchucks, robots, hacker software, tazers, laser beams, and so on.

    The reality is that the gun lobby and the NRA have more or less purchased and locked down the second amendment. Virtually all other types of weaponry are more heavily regulated than guns.

    • Mister44 says:

      re: “Virtually all other types of weaponry are more heavily regulated than guns.”

      You must live in NY or something, because I can go buy any of those above mentioned weapons with out showing my license, much less have to fill out a federal form.

      But yeah – it’s bullshit that either of them are regulated to extent they are.

      re: “It says right there, “well-regulated militia”.”

      Just like “the gays” meant something different to us now than in 1789, so does “well-regulated militia”.

  29. JasonsRobot says:

    Scalia’s a bully and a prick.. BUT..

    When it comes to ‘arms’, I think the ‘drafters’ thought people should be allowed the right to bear the same kind of arms available to military, yes? Because (I could be wrong about this), the civies are supposed to be able to fight the military if they so choose. Back then, the military had muskets and civilians had muskets. Those were the only ‘arms’ people knew.

    Now the military has fully auto bullet sprayers.. therefore, under this argument, so should civilians.

    There already are limits; in most places, people can’t own or operate anti-aircraft missile launchers.
    So, because now there are many different levels and varieties of arms (and ammo), discussing what kind of ‘arms’ civilians should or shouldn’t have the right to bear in this day and age ends up being not so simple.

  30. Percival Dunwoody says:

    That restaurant depicted in the final panel is a favorite among time travelers. The pizza’s good, but it repeats on you. – Percival Dunwoody, Idiot Time Traveler From 1909

  31. Anonymous says:

    I think only those people who can spell “Second Amendment” should be allowed to exercise it.

  32. buddy66 says:

    What is this, some sort of guinea-bashing? Is it to remind us that two of our SOTU justices are Italian-Americans and therefore suspect as respectable Americans? I don’t like Scalia but I don’t like the chickenshit subtext either.

  33. P1rat3 says:

    It’s funny because it’s truly depressing.

  34. glaborous immolate says:

    “Hey Madison, when you said that the government can take private property for ‘public use’, did you mean uses for the public good, or did you intend to include selling land to developers who will increase the tax base by building private shopping malls”

    “Shopping malls?”

  35. Space Toast says:

    Excellent. But a small, two-word suggestion: {overflow: scroll;}

  36. Anonymous says:

    I know the Pizza thing is based on an actual comment by Scalia, but to nitpick, I would bet that many, if not most Italian workers had heard about Chicago in 1889. The Great Chicago Fire was in 1871. Around the turn of the century Chicago was fifth largest city in the world. Most importantly, in 1886 Chicago’s Haymarket incident galvanised the international labor, anarchist, and socialist movements, spurring worldwide protests and birthing Mayday.

  37. absimiliard says:

    I have to say that I don’t like the formatting of the comic itself. By restricting my ability to resize the window smaller than a certain size you make it very difficult for me to easily view everything, even after scrolling.

    -abs finds it a little “Meh” in the humor department, but pretty damn spot-on in the “Scalia is one crazy mofo who will justify any idea he comes up with on the slightest, and occasionally false, reasons.” category

  38. glaborous immolate says:

    “The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” – Scalia

    Perhaps the clearest example to illustrate the importance of the difference between original intent and original understanding is to use the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry would ask what the framers understood the amendment to mean when it was written; an original meaning inquiry would ask what the plain meaning of the text was in 1992 when it was eventually ratified. – wikipedia

  39. Cowicide says:

    The Koch brothers probably aren’t laughing at that last part.

  40. Jonathan Badger says:

    I agree that Scalia’s originalism is bogus, but surely the authors of the 14th amendment in the 19th century knew what homosexuality was, even if they didn’t know modern slang for it, so it isn’t quite analogous to the writers of the 2nd not knowing what modern weaponry like revolvers were.

    • RandomGameR says:

      @Jonathan Badger: The modern day homosexual would have zero resemblance to what the concept of a homosexual was back in those times. The analogy works in exactly the same way.

      For instance, two men who live together, have adopted a child, hold hands, and kiss in public, and aren’t stoned to death would be as foreign a concept as a revolver.

      • bzishi says:

        You are talking about gay rights, not gays. Gays were known (under different names) and how well they were tolerated depended on their social status. For example, von Steuben was gay and he was Gen. Washington’s chief of staff. He had a relationship with one of his aides while working for Washington. It is theorized that Alexander Hamilton might have been another of von Steuben’s lovers since he was also his aide. Everyone must have known about this, but I doubt they cared, because von Steuben was a general and a genius. But at the same time, lowly privates were drummed out in disgrace.

    • Brainspore says:

      …surely the authors of the 14th amendment in the 19th century knew what homosexuality was, even if they didn’t know modern slang for it…

      They may have known that some people engage in homosexual acts, but it’s unlikely that most of them could have known that sexual orientation is a central, enduring part of human identity that individuals cannot choose. Even after it became clear that homosexuality wasn’t a choice it was considered a mental illness as recently as the 1970s.

      So yes, “gays” as we think of them today would have been a pretty foreign concept to most people of the time.

    • Phlip says:

      > surely the authors of the 14th amendment in the 19th century knew what homosexuality was

      However, they didn’t have Masters & Johnson to tell them that 10% of any population is at least bisexual, and that some smaller rate of men are incapable of performing with women.

      They didn’t even know Lincoln was gay, for example.

      Between marriage as a business deal, and the discretion of the bordello system, the authors did not understand that “gays” were a coherent minority with rights to protect.

      • Brainspore says:

        They didn’t even know Lincoln was gay, for example.

        I’m with your general point (in fact I made a very similar point earlier at #22) but you’re overreaching a bit there. Even WE don’t know Lincoln was gay. It’s mostly just speculation based on the fact that he once shared a bed with another man, which wasn’t an uncommon practice at the time. He was also able to father several children so at most he might have been somewhere in the middle of the Kinsey scale.

    • Anonymous says:

      Sexual identity is much more of a social construct than that – people today think you are gay or straight (or bi), but back then the idea was very different. Even only going to 1900, people didn’t think of themselves as “gay”. You could be a man who has a lot of sex with other men, but if you are the active partner (or top), you considered yourself straight, as did others. George Chauncey’s “Gay New York” is a great book that explores this.

  41. sapere_aude says:

    Since this thread seems to be delving into Second Amendment issues, I’ll post a link to a comment I recently posted on another BB thread, which addressed some of the very issues you’re discussing now:

    http://www.boingboing.net/2011/02/04/thats-a-lot-of-guns.html#comment-1024984

    • Ito Kagehisa says:

      When my great-great-grandfather came to the United States, he brought his cannon with him. He had been an artilleryman in the English Army in a time when such men often owned and maintained their equipment.

      He taught my great-grandfather how to make powder and shot (essential skills for the pre-WWI British cannoneer) and my great-grandfather shot that cannon using home-made powder every Fourth of July from the front lawn of his home near Lexington Kentucky. Not one person was ever harmed.

      My great-grandfather and my grandfather both died in 1976 when I was just a teenager. My father doesn’t know what happened to the cannon. I can barely remember what it looked like; I mostly remember it as LOUD.

      There was a time when men were presumed innocent until proven guilty in the USA. The truly radical dimensions of this idea become apparent when one considers that there is no good reason to deny a free man access to any weapon, unless you judge him guilty of incompetence, insanity, evil intent, or some other kind of relevant crime or disorder.

      PS: Scalia is a misogynist, homophobic religious bigot. I haven’t been able to figure out if he’s also a racist, or just filled with hatred for the working poor.

      • sapere_aude says:

        there is no good reason to deny a free man access to any weapon, unless you judge him guilty of incompetence, insanity, evil intent, or some other kind of relevant crime or disorder.

        Good. Because I’ve always wanted to start collecting thermonuclear warheads as a hobby; but I was afraid that my neighbors might object. ;-)

        On a somewhat more serious note: Law lives in a constant state of tension between the Right and the Reasonable – between principle and pragmatism. Go too far in one direction or the other, and the the result could be disastrous: Take an absolute stand on principle, and you run the risk of behaving irrationally. Decide that the ends justify the means, and you end up violating people’s most fundamental rights. Law has to live in the “sweet spot” where the Right and the Reasonable overlap – the place where one can stick to one’s highest principles while still behaving pragmatically.

        So, while I would agree with the principle that people ought to be presumed innocent until proven guilty, and ought to be free to own weapons unless they abuse that freedom, I have to admit that it’s not very pragmatic in a civilized society for there to be no prior restrictions whatsoever on the possession of the most dangerous weapons that are commercially available today. The Right must accommodate the Reasonable. But, on the other hand, the Reasonable must not undermine the Right: Restrictions on weapons should not be so onerous as to make it impossible for a law-abiding citizen to own weapons for legitimate purposes. There has to be a way to reject the extreme positions on both sides of the gun debate, and find a solution that allows private gun ownership, but regulates it in the interest of public safety.

        • AnthonyC says:

          Agreed. Also, I would define justice as the overlap of “lawful” and “good.”

        • Mister44 says:

          re: “The Right must accommodate the Reasonable. But, on the other hand, the Reasonable must not undermine the Right: Restrictions on weapons should not be so onerous as to make it impossible for a law-abiding citizen to own weapons for legitimate purposes. There has to be a way to reject the extreme positions on both sides of the gun debate, and find a solution that allows private gun ownership, but regulates it in the interest of public safety.”

          When you bring right and reason into the picture, you may realize that if you strip away emotion from the argument, and remove your perceptions from the media, TV, and movies, that the numbers show guns are not that dangerous.

          Your chance of accidental death is really rather low. Your pool, stairs, or Lemon Pledge are all more likely to kill you.

          • sapere_aude says:

            Well, let’s see. According to CDC statistics, in 2007, there were 30,873 deaths in the United States caused by firearms (including accidental shootings, suicides, homicides, and firearms deaths of undetermined intent, but excluding shootings by law enforcement officers and deaths in war).

            In that same year, there were only 3,443 deaths by accidental drowning.
            Additionally, there were 22,631 deaths by accidental falls.
            And there were 29,946 deaths by accidental poisoning that year (though I’m not sure how many of those specifically involved Lemon Pledge).

            Also in 2007, there were 5,729 murders in the United States by means other than firearms (compared to 12,623 murders by means of firearms).
            And there were 17,246 suicides by means other than firearms (compared to 17,352 suicides by means of firearms).

            Now, admittedly, deaths caused by accidental shootings and shootings of undetermined intent are fairly low – only 889 in the United States in 2007 – far lower than deaths from any other single accidental cause. So, yes, if the purpose of legal restrictions on the possession of guns were merely to prevent accidental shootings, they would probably not be justified. But I think most gun control measures are intended to try to reduce intentional gun violence; so it makes no sense to focus solely on accidental gun deaths and ignore the huge number of murders and suicides that are committed each year in the United States with guns.

            You can certainly question the effectiveness of gun control measures for reducing gun violence; but don’t downplay the severity of the problem by ignoring intentional shootings and focusing solely on the relatively small number of accidental gun deaths that occur in the United States each year.

          • Mister44 says:

            Thank you for an honest look at the data.

            re: “But I think most gun control measures are intended to try to reduce intentional gun violence; so it makes no sense to focus solely on accidental gun deaths and ignore the huge number of murders and suicides that are committed each year in the United States with guns.”

            But see it does make sense. What questions are we asking?

            “Are firearms dangerous?” Well, yes, as a host of other things are.

            “Are firearms dangerous is properly used?” The answer is ‘no’, as a host of other things are.

            “Are firearms being misused dangerous?” Yes.

            So my point is if one wants to ban/regulate something, it is because it is dangerous, right? To protect the public, as they say. But as you can see, properly used, firearms are not that dangerous.

            The murders aren’t cause by guns. (I won’t use the cliche… must… fight… the urge.) Let’s look at Chicago and the Fuller Park area. It is the highest crime rate area in Chicago, with over 4000 violent crimes per year. Are guns causing the violence? No. Drugs and poverty and other social ills are the cause. Chicago has some of the strictest gun laws in the nation.
            You have to register your hand gun, and they are no longer taking new registrations. Unless you were grandfathered in by having a registered gun in 1962 – you can’t own one. Does that seem to be working here? Note – because of the Heller decision, they are now taking new registration since 2010, I believe.

            Placing a straw man here, but Fuller Park is 90something percent black. While one could draw the conclusion, I think few people would say ‘there are crimes and death because of all the black people’. But people will look at the crime stats and say, “Woah – look at all the gun deaths. We better round them all up!”

            The UK passed anti-handgun laws, and now they are looking at passing anti-knife laws. Their violent crime has increased since then. It is like putting cream on a sunburn, but continuing to stand in the sun – they are attacking symptoms instead of the origins of the problem.

            FWIW read Freakanomics. They have a great chapter on death statistics and risks in general that are over emphasized. In other words, people worry about the wrong things. One would call a gun owner with out trigger locks or a safe to be irresponsible. But as you can see, you are, what, over 30x more likely to die from poisoning, yet I have yet to see a ‘chemicals’ safe in a home. Most of them aren’t even under ‘baby locks’, and I have never seen them under lock and key.

          • sapere_aude says:

            I actually agree with much of what you’re saying. (And, yes, Freakonomics is a great book.) I would never suggest that gun control laws, in and of themselves, are the solution to gun violence. Nor would I suggest that we ought to be banning guns outright. However, I do believe that certain commonsense restrictions on guns can play an important role in helping to maintain law and order in our communities, in the interest of public safety. I certainly don’t want to prevent mature, responsible, law-abiding citizens of sound mind from being able to own guns for self-defense or defense of their homes, or for hunting, or for target shooting, or as collector’s items. These are perfectly legitimate.

            But some firearms – such as fully automatic weapons – are simply not legitimate for civilian use outside of specialty shooting ranges. And there are certain places – such as schools, courthouses, and passenger airliners – where civilians should not be allowed to carry guns at all. Moreover, there’s no legitimate reason for anyone other than gun dealers and shooting range owners to purchase firearms in bulk, or to stockpile large quantities of weapons.

            Even Justice Scalia recognizes the legitimacy of some forms of gun control. Here’s what he wrote in his majority opinion in Heller:

            Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

            We also recognize another important limitation on the right to keep and carry arms. [United States v.] Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [internal citations and footnotes omitted]

            I’ve got to say that I agree with Scalia here. Even if the Second Amendment protects an individual right to own weapons for purposes unrelated to militia service, that right is not absolute. The government may legitimately ban certain types of weapons, or ban all weapons in certain places. It may also legitimately require that guns be registered, and that gun owners obtain a license if they wish to carry a handgun in public places. This is what I mean by reasonable restrictions on the possession of firearms – not an outright ban; just commonsense limits.

      • Mister44 says:

        Man – you should track it down – it’s both your family history and part of American History.

        If it was sold in 1976, I am sure someone would have noticed as I believe they were worth tens of thousands of dollars then. They are worth between tens and hundreds of thousands of dollars today.

        If it wasn’t sold, check around local museums and parks to see if it was donated. Check newspaper archives, as it may mention it there too.

        Very cool story. Thanks for sharing.

  42. Church says:

    Kay… Can’t actually read the comic in Safari.

  43. spif says:

    This is unreadable in Chrome.

  44. sapere_aude says:

    @Ito Kagehisa & Mister44:

    It’s very late; and I’m far too tired to give an adequate response to the excellent points you both have made. So please forgive me if I don’t address your specific comments and questions tonight. But I will say this before I call it a night:

    Rights are not absolute or unlimited. They never have been. Even your freedom of speech, freedom of religion, and property rights have their limits. For example, the law does not recognize your right to go out onto your own front lawn with a bullhorn at 3:00 in the morning and deliver a rousing sermon to your sleeping neighbors. As long as you live in a society with other people, your rights are limited by the equal rights of others. That’s what the “social contract” is all about: You are free to exercise your rights up to the point where you begin to infringe upon the rights of your fellow citizens. As the saying (often misattributed to Justice Holmes) goes: “Your right to swing your fist ends where the other fellow’s nose begins.” So, saying that people have a “right” to own guns does not settle the matter. The assertion of a right must be the beginning of the legal process, not the end. The law must then go on to decide what the proper limits of that right are. And the proper limits of any right are where your exercise of that right would infringe upon the rights of your neighbors.

    Now, where does the exercise of gun rights infringe upon the equal rights of others? That’s a tough call, of course. But, as a general rule of thumb, I would argue that when you start using your gun(s) in a manner that makes reasonable members of your community fear for their lives and safety, that’s probably the point where your gun rights start to infringe upon the rights of others, and ought to be limited. A responsible gun owner should never reach this point; and most gun owners never will. But a small minority of gun owners will. So it makes sense for the community, via its institutions of government and criminal justice, to set boundaries on gun ownership that say, in essence: you can do anything you want up to this point; but if you cross this line you’ve gone too far. That line may be drawn at fully automatic weapons, at assault rifles, at sawed-off shotguns, at extended magazines, at stockpiling crates of Kalashnikovs and ammunition in the basement of your secluded cult compound, at carrying a concealed weapon in public without a permit, at carrying a weapon onto school property, or whatever, so long as the line is clearly drawn and is reasonable. Now, we, as a society, can – and should – debate what is “reasonable” in this context. And there will certainly be many different points of view on this. But what we should NOT do is reject the very idea of reasonable limits as an infringement on gun rights.

    To take an absolute stand on Right is to abandon Reason – and that’s something the law must never do. I’m not suggesting that anyone here is taking an absolutist position on gun rights; but you do both seem to take a rather skeptical position on the value and legitimacy of gun laws, which is a shame. I believe there is more benefit to be gained by crafting good gun laws that respect the rights of gun owners while still protecting the rights of citizens to feel secure in their own communities, than by staunchly opposing any gun control efforts, no matter how reasonable they might be, as a potential threat to gun rights.

Leave a Reply