Argument Techniques

Question 1

Argument Techniques

Answer 1

Textual
Structural
Precedential
Institutional Competence and Process arguments
Originalist / Historical
Pragmatic / Consequentialist

Question 2

Textual

Answer 2

(see interpretation methodology ?)

Question 3

Structural

Answer 3

Analysis based on the overall structure of the cnstn and how the document intended to set up a coherent and functional system

• Separation of powers
• Heller: Scalia discusses “right of the ppl” within other portions of the cnstn and asserts the same interpretation should be applied to each provision citing that phrase

Question 4

Precedential

Answer 4

Prior case law

Question 5

Institutional competence and process args

Answer 5

Legislature has better instnl capacity to consider competing concerns/data in reference to constituents (particularly locally)
Separation of powesr

Question 6

Originalist / Historical

Answer 6

Intention of the drafters/enactors
Analyze the history of the drafting and ratification
Look for: Concerns? Expectations? Rejection or acceptance of alternative wording in different drafts?
Overlaps with textual analysis when the meanings of words have changed over time
- Consider whether to use public meaning of ordinary ppl at that time in history v. private meaning of the more highly educated drafters

Question 7

Pragmatic / Consequentialist

Answer 7

Forward looking
“What decision will produce the best result?”
Perhaps strict interpretn may always creat the best results OR
perhaps the framers intended to not bind the judiciary by original intention, but instead to expresssly make the cnstn vague such that it may evolve w society
Weaknesses:
Instutnl Competence & Democratic Legitimacy
- Heller: Decision will force courts to make decisions on other current regs about who, what, when, where, and how guns are allowed to be possessed…