Originally Posted by
RichardKenner
No, not at all. What I'm saying is that how to apply it isn't obvious and certainly can't be viewed in a literal sense.
Why not? Let's review it:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Do you see anything there making exceptions for political advocacy? I don't. Presumably they had political advocacy in those days.
When the only form of press is the printing press, "censoring" the press has a very clear and obvious meaning. But what's "press"? Is advertising a form of "press"?
In those days "press" was some guy with inkstains on his face. Today, it can be someone with a computer, internet connection, and a web cam. We don't have to go through a Socratic dialectic to figure out that the modern person is simply carrying out the same press functions as the ink jockey. [edit add: not sure why you ask the questions of advertising versus press. those two activities are not the same, have not been confused, and are subject to different governing legal principles.]
Remember that the basis of the controvercial Citizen's United case on campaign financing is precisely along these lines. I just don't see how you can look at the First Amendment and say that its literal meaning could have been used to decide that case.
Ultimately, the judges reaffirmed the force of those words. They didn't add to them. [edit add] although extending them wisely or unwisely to corporations. But I agree with you on that one. Not obvious and asking interesting questions on the nature of a corporate person and ramifications of persons being politically active in groups. [end edit]
Precisely, but made worse by the fact that what was considered a "militia" then isn't the same as what we mean now.
Neither is a military unit the same now as it was in 1934 in the US v Miller ruling. Using Miller's reasoning, we'd all be entitled to M4's capable of firing in 3-round bursts today, because that's the baseline unit weapon today.
The militia clause, as pointed out by Laurence Tribe, is not the main clause of the 2nd Amendment establishing the right, btw. [edit add: this concession was made by tribe in 1999 when he said there was an individual right to bear arms apart from militia considerations]
it's not possible to look at the Constitution literally: we have to interpret how its provision should or should not apply to situations never envisions by its authors.
If you have something for which there is no clear analogue, no clear line of descent from the times of the framers, I agree. But in the case of TSA strip searches and sexual gropings, there is nothing essentially or conceptually new. You have travelers, government actors, and vehicles. It is essentially the same as what the founders had. Unless the accident of travelling by air rather than on the ground magically provides government actors with the right of free access to your genitalia.