Hacker News Reader

Comment by ars | Hacker News Reader

https://en.wikipedia.org/wiki/Denise_J._Casper Obama Judge.

But you should realize you are basically saying Judges are not impartial arbiters, but rather biased based on who appointed them.

View on HN

To interpret words, as a judge does, is inherently biased.

Just because two people disagree on an interpretation of law does not mean they are not applying that law in good faith - we all have worldviews and beliefs that naturally color our understanding of reality - which includes our understanding of laws.

We attempt to write laws clearly to avoid personal interpretation, but it's impossible to avoid all interpretation. Thus we appoint wise judges to do so for society. Even wise judges have unique worldviews.

Richard Posner from the 7th circuit said something like this: (a) decide which way one wants to rule (b) find the relevant reasoning to effect (a).

What we are told is the other way around, a fiction: Reasoning drives the decisions.

Sure, judges can't decide arbitrarily. They have a range of reasonings, a set of outcomes, along with prevailing political/intellectual/economic winds. Just pick an appropriate combination.

Not quite. I’m saying that liberal judges tend to ignore the law when it comes to highly political issues.

For example, how many opinions have you read from Ginsburg where she says “I personally disagree with this outcome, but the law is clear.”? Quite rarely.

I would argue that this is not really a "liberal" thing. Up until the 1970's the courts (including the Supreme Court) regularly found that the right to bear arms was in the context of establishing a militia, and not really a personal right. They consistently citied the "A well regulated Militia" part. The law was clear.

Nowadays Supreme Court president effectively ignores the militia part, and has created a personal right mostly out of whole cloth. So 200 years of president out the window, mostly for a political issue.

That interpretation is farcical and was rightly overturned. How can a right be held by the collective if it is not protected for the individual? Are we to believe that individual journalists may be hauled off to jail without violating the freedom of "the press"?

Collective rights are held by the States. "The people" are individuals and the prefatory militia clause is not a limit.

The founders included that clause for a reason.

The Supreme Court opinion in DC v. Heller explains why that clause was included:

>The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...

And to think that Scalia considered himself an originalist! I guess that only applied when it was convenient to him :/

This is originalism as clearly supported by the numerous references to contemporary language, other writings of the authors, and comparison to other language in the Constitution. Have you read the opinion?

Reply on news.ycombinator.com