‘Justice Scalia maintained, consistent with his originalist philosophy, that ‘the freedom of speech, or of the press’ must be construed in light of how these terms were understood in 1791, when the First Amendment was adopted. He noted the presence of the definite article — ‘the freedom of speech,’ not plain old ‘freedom of speech’ — and argued that the Amendment should be understood as protecting the free-speech rights enjoyed by Englishmen at the time.”
BiteMe’s resident constitutional scholar, H. O. Hell, BS, MS, PhD, agrees with Scalia on this, arguing that the Second Amendment’s protection of the right to bear arms refers to the arms known to the Englishmen of 1791 — namely muzzle-loading muskets.
via Justice Scalia Goes to Wesleyan « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts.
When I wrote this post, I totally missed the fact that Scalia was applying a principle of foreign law to his (mis)understanding the of the First Amendment. Clearly, Scalia will happily apply foreign law when it fits his purposes. Here’s one example; a quick Google search will turn up others: