Justice Scalia Often Uses The Texualist Approach When Arguing
925 WordsMay 5, 20174 Pages
Justice Scalia often uses the texualist approach when arguing for the text of the Constitution, but sometimes, as Scalia would argue, the text isn’t straightforward. In R.A.V v. City of St. Paul, Scalia authored the opinion of the Court, in which he argues that free speech is protected under the Constitution, unless it falls under a very narrow set of exceptions. According to Scalia, some content can “be regulated because of their constitutionally proscribable contents (obscenity, defamation, etc.).” Scalia’s argument is that there are certain exceptions in the text of the Constitution that allow for regulation of certain speech.
He also grants that the “prohibition against content discrimination that we assert the First Amendment…show more content…
While Scalia presents a strong argument for textualism in these cases, nowhere does he focus more on the actual text of the Constitution then in District of Columbia v. Heller. In this case, Justice Scalia held for the majority of the Court that the District of Columbia law restricting gun ownership was in violation of the Constitution. In his opinion, Scalia looks very closely at the operative clause of the Second Amendment: “Right of the People.” In his examination of the phrase, Scalia looks at how it is used in other parts of the Constitution and the Bill of Rights where it refers “to individual rights, not “collective rights, or rights that may be exercised only through participation in some corporate body.” Scalia argues that the right to bear arms is a right enjoyed by individuals, not just groups. In his tedious examination of the text, Scalia also looks at the phrase “Keep and bear Arms,” which Scalia says has not changed in meaning from the 18th century definition of arms. More specifically, Scalia looks at the meaning of the term in the 18th century, where it had “a meaning that refers to carrying for a particular purpose – confrontation.” In combination with a study of history, Scalia understands that the Second Amendment conferred “the individual right to possess and carry weapons in the case of confrontation,” but did not make the right infinite. Therefore, certain reasonable