But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.
There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."That means the phrase "A well regulated militia being necessary to the security of a free state" was pretty much ignored or discounted in Scalia's analysis. This is despite the rule of constitutional interpretation that "It cannot be presumed that any clause in the Constitution is intended to be without effect." The individual right interpretation means that not only is the "preferatory clause" mere surplusage, entirely without meaning, but so is the rest of the text
Of course, the "Individual right" theory also neglects the preamble, which most people seem to stop reading after the first three words:
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."I would assert that both the preamble of the Constitution and the "preferatory clause" are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of "the common defence".
From Plato's Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.
The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.
The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.
This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.
Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry "Let everyman be armed quote" is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.
I really don't want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the "preferatory" clause far more weight than it was given in the Heller decision:
Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an "originalist" and "constitutionalist" context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.
I am truly disappointed by the praise of the emperor's new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress' power "incorporate" to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.
State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:
However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.
It is even more devastated if we are going to go outside the document since we need to have the "scholars" explain how:
- The concept of self-defence did not allow for the use of deadly force as
a first option when the Constitution was written. Deadly force at that time was a LAST option. There was
a duty to retreat. Deadly force could only be used if there was no
lesser alternative and all other options had been exhausted. You had to
have your back to the wall to be able to kill someone.
--carrying a weapon would create a presumption that you intended to do harm. - Where are the other versions of "gun rights" in Common Law nations?
- The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought. It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
- regulation of private arms has always been a part of the common law.
- When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
- Why the US Constitution would concern itself with matters of "personal defence", especially in light of point (1) above?
- Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.
It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.
I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.
This is long, but well-argued. I think a more brief version is simply this. Nothing was put in the Constitution without purpose, but more importantly, just as you might say, "Because I need food, I am going to the store" they said "A well regulated militia....". In brief, there is no ability to separate the reason from the act. The reason is that I need food, the act is I go to the store. I justify the act by the reason, just as we justify the right with the reason. It is illogical in the extreme to try to say one stands without the other. it would be like saying, "Because I need food" is a complete sentence and further ignore the attachment each part has to the other. it's nonsense but not unsurprising nonsense from those who'd prefer to ignore anything in the Constitution which doesn't suit them, including pretending parts were included, not to justify, but for no reason at all. it is further not surprising given it was Scalia who argued it, a man who gave voice to illegitimate argument through bombast and bluster, and very little else.
ReplyDeleteActually, the simpler version is that common defence is mentioned, but personal uses are not. The Second Amendment mentions a purpose related to the common defence: a well regulated militia. I didn't get into the grammar since that is covered in Baron's Essay. In law, one cannot infer something, where as the militia purpose is expressly mentioned.
DeleteSince common defence and militia are mentioned, but private purposes are not, one cannot say private purposes are covered by the Second Amendment.
Laci,
ReplyDeleteThere are so many wrong-headed arguments that it is difficult to decide which to address first. However the claim that the Individual Rights theory is revisionist history is the most striking. Your quote from State V Buzzard is actually Judge RIngo's response to an EARLIER court (Bliss v KY) which described an individual right that was much broader that the Supreme Court found in Heller. So much for revisionist history!
Moreover, of the three judges in Buzzard, only one (Dickensen) agreed with the Heller dissent and held that the right to keep and bear arms was limited to service in the state militia. A review of the early state court cases shows that Dickensen's view was the true outlier, there was not a court that held his extremely narrow interpretation until 1905.
While Judge Ringo (Buzzard) held that that the right of the people to keep and bear arms was limited to a single purpose, the common defense, he still read it as a right of the people. His view was taken up by the Tennessee supreme court in Aymette and other courts, including a later Tennessee decision (Andrews) which defined an individual's right to keep arms more broadly.
The third judge on the Buzzard court interpreted the second amendment much the same as the Heller majority, and made many of the same critiques of his fellow judges' views as the Heller majority said of the dissenting opinions in that case:
"Now, I take the expressions "a well regulated militia being necessary for the security of a free state," and the terms "common defense," to be the reasons assigned for the granting of the right, and not a restriction or limitation upon the right itself, or the perfect freedom of its exercise. The security of the state is the constitutional reason for the guaranty. But when was it contended before that the reason given for the establishment of a right or its uninterrupted enjoyment not only limited the right itself, but restrained it to a single specific object? According to this construction the right itself is not only abridged, but literally destroyed; and the security of the free State is made to depend exclusively and alone upon the force of the militia. And, in the opinion of one of my brother Judges, it is the militia alone who possess this right, in contradistinction from the mass of the people; and even they cannot use them for private defense or personal aggression, but must use them for public liberty, according to the discretion of the Legislature. According to the rule laid down in their interpretation of this clause, I deem the right to be valueless and not worth preserving; for the State unquestionably possesses the power, without the grant, to arm the militia and direct how they shall be employed in cases of invasion or domestic insurrection. If this be the meaning of the Constitution, why give that which is no right in
itself and guarantees a privilege that is useless? This construction, according to the views I entertain, takes the arms out of the hands of the people, and places them in the hands of the Legislature, with no restraint or limitation whatever upon their power, except their own (p.36)free will and sovereign
pleasure. Are great affirmative grants of political powers to be determined by this technical rule of verbal criticism? If so, its rigid application to other portions of the Constitution would erase from its pages many of its most important and salutary provisions. Such a principle, I apprehend, should never
be recognized or adopted by any judicial tribunal in determining the inherent and original rights of the citizen. It goes to abridge instead of enlarging the constitutional guarantees of personal liberty." (end quote).
To put it more succinctly, the fact that a well-regulated militia is asserted to be necessary to the security of a free state does not limit “the right of the people to keep and bear arms”. That right existed aside from the second amendment and the text of the amendment places no qualifier on that right. The purpose of the prefatory clause of the second amendment is not to qualify the right of the people to keep and bear arms because absolute construction does not modify the subject of the main clause. Instead the purpose of the prefatory clause is to provide a rationale (or purpose) for the non-infringement of the right. Providing a rationale for the action which takes place in the independent clause is the normal function of absolute construction, as professor Baron well knows.
ReplyDeleteLastly(for now),
ReplyDeleteYour cite to Mayer's 1998 essay is a wee bit odd since the State's Rights theory espoused in Hickman(9th circuit)back in the 1990s was tossed aside long ago for the Collective Rights theory of Silveira(again 9th circuit), which was itself tossed aside by the entire Heller court, including the dissents.
"In this connection, however, I need to say something about a recent popular misconception concerning Patrick Henry’s legacy and the genesis of the Second Amendment, which states, “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Despite efforts of a number of misguided scholars to construe this language as justifying individual, unregulated gun ownership, I am firmly convinced that the Second Amendment is concerned with the state’s power to control its own militia as a civilian alternative to a professional standing army."
While Virginia and other states did propose amendments to return to each state the power to arm their militia, the state power amendments went nowhere. The federalists instead guaranteed only that the right of the people to keep and bear arms would not be infringed. This guarantee was plainly made to the people, which is why we do not hear much about the State's Rights theory of the second amendment anymore.
Did you actually bother to read prof. Baron's essay? Seriously, why bother saying "well-regulated militia" if it was meaningless?
DeleteI'm pretty sure what I wrote went over your head from your comment.
Although, given your use of surplusage, it would make sense that you would consider that to be the case.
Anyway, your conclusion is bullshit since (1) Justice Stevens' dissent in Heller followed the state's right theory (Seriously, you need to actually READ the stuff you quote and not waste my time with longwinded bullshit)
2) Heller is a crock of shit and I don't follow it, which you would understand why if you could get your head around what I said.
Please don't waste my time.
OK, Mike, I was a bit rude, but you are a lot stupid. The US constitution says it deals with matters of the common defence--it says fuck all about personal defence.
DeleteIf a law explicitly mentions one thing, but does not mention another, you cannot infer what was not mentioned.
IS that a simple enough explanation for you or do I need to dumb it down some more?
P.S. I have my work seriously cut out if I want to show you WHY you are wrong.
DeleteIf you want to have a discussion, please go back and reread what I wrote, try and understand it. I may respond if you can come up with an intelligent comment.
If you are going to discussion paleolithic state court interpretations of the US Second Amendment, please read Aymette v. State, 2 Humphreys 154 (Tenn. 1840). Get that it (1) predates Buzzard and (2) was incorporated by reference to US v. Miller, 307 U.S. 174 (1939).
"To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive."
Seriously, Mike, actually go and read the primary sources and not spew regurgitated BS before you come back. Remember these are STATE decisions addressing STATE constitutions because that is an important distinction to make.
DeleteGot that state courts addressing state constitutions?
And while you're at it, Mike, harmonise this from Presser v. Illinois, 116 U.S. 252 (1886) with your interpretation that the Second Amendment deals with a right unconnected with Militia Service:
Delete"The right voluntarily to associate together as a military company or organization or to drill or parade with arms without and independent of an act of Congress or law of the state authorizing the same is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system, they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject."
For good measure, Justice William O. Douglas, who was on the court at the time of US v Miller, explained that decision in Adams v. Williams, 407 U.S. 143 (1972)
"There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [p151] secured through the Militia -- civilians primarily, soldiers on occasion. Id. at 178-179."
Also from Presser:
Delete"It is next contended by the plaintiff in error that sections 5 and 6 of Article XI of the Military Code, under which he was indicted, are in conflict with the acts of Congress for the organization of the militia. But this position is based on what seems to us to be an unwarranted construction of the sections referred to. It is clear that their object was to forbid voluntary military associations, unauthorized by law, from organizing or drilling and parading with arms in the cities or towns of the state, and not to interfere with the organization, arming and drilling of the militia under the authority of the acts of Congress." Page 116 U. S. 269
BTW, Presser states that the Second Amendment applies to governmental powers under Article I, Section 8, Clause 16.
As I said, come back when you have read the material and can discuss it intelligently--not after reading secondary source material that you don't understand.
BTW, The dissent you mention in Buzzard makes it clear he is discussing the STATE constitution.
DeleteHe also says:
[But the majority of the court being of a different opinion, the judgment was reversed.]
Again, come back when you have read the material and can discuss it intelligently--not after reading secondary source material that you don't understand.
Again, short form, which is even borne out by your quote from Buzzard. Rules of statutory interpretation require that one use the language of the statute in a consistent manner and not go outside it, unless there is some ambiguity.
DeleteThe constitution talks about common defence, armies, and militias. It is silent on personal defence.
One cannot infer something which is not explicitly mentioned-no matter how many fairy stories you wish to bring to the table.
Simple legal principle, but Heller and McDonald needed something other than the text to produce a result which was without basis.
Got it?
Mike, spot the differences:
Delete"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
"that the free white men of this State shall have a right to keep and bear arms for their common defense"
"that the right of the citizens to bear
arms in defence of themselves and the state, shall not be questioned."
Excuse me for being a bit short, but this is an incredibly easy concept to understand:
ReplyDelete1) There are rules of statutory interpretation:
a) Use the plain language of the statute
b) it is assumed that every word in a statute is meaningful and that it should be read in a way that is consistent.
c) things explicitly mentioned are covered, whereas one cannot infer something that is NOT explicitly mentioned.
Those are basics of legal practise.
A supreme court justice wrote a decision that did not follow those rules. In fact, his decision made it clear that he did not want to follow those rules.
You cannot cite to a flawed decision to justify its fallacy.
Got it?
Please read the post before commenting and try to make intelligent comments based upon your having read the material.
Laci,
ReplyDeleteRegarding your post at Mar 1,2016 at 6:33PM
You said: Justice Stevens' dissent in Heller followed the state's right theory.
That is very easy to disprove as the 9th Circuit in both Hickman (State's Rights) and Silveira (Collective Rights) held that individuals have no rights whatsoever under the second amendment and no standing to make a second amendment defense.
Justice Stevens said that there is an individual right under the second amendment and very plainly did not attempt to deny standing to Mr. Heller.
Your posts are filled with errors of fact as well as logic.
Please read the decision and then comment: otherwise you are just wasting my time. I would expect that you would provide some sort of proof for actually reading as well. Thank you.
DeleteAlso, provide the proper citations for any source you give. That should be easy for you to do if you have any legal knowledge.
DeleteVery first paragraph of Stevens dissent:
DeleteThe question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.(end quote)
From Breyer's Dissent:
In interpreting and applying this Amendment,
I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. (end quote)
But of course you knew this already.
Laci,
ReplyDeleteRegarding your post at Mar1, 2016 6:40PM
You said: If a law explicitly mentions one thing, but does not mention another, you cannot infer what was not mentioned.
Sure, but "the right of the people to keep and bear arms" was mentioned. The dependent clause provides a rationale for not infringing that right, but it does not qualify that right. You are making the same wrong headed argument as Justice Stevens by insisting that without qualifiers the right is more narrow than it would be with qualifiers.
Consider:
You may borrow my car.
You may borrow my car to go to the store to purchase medicine for your father.
Which is broader?
OK, you're not getting this at all are you? That means your assertion that two of the longest sitting Supreme Court Justices are "wrong headed" in their interpretation of the Second Amendment is bizarre.
DeleteAlso, what qualifies you to say these opinions are "wrong headed"--where did you attend law school? Where are you admitted to practise? How long have you been practising?
Your opinions lack merit unless you can provide answers to those questions since you cannot offer a legal opinion.
Yes, you do need to have some knowledge to play this game. (Me: LLM University of Exeter, JD University of Maryland, Admitted PA, DC, EDPA,& MDPA. Practising for 26 years)
There are two type of uses for firearms: one is the common defence. That would be the military.
The other would be self-defence, which would be personal.
These are two separate topics.
Additionally, in the common law, one did not have a "right" to use deadly force. Deadly force was an extreme option.
The use of excessive force at common law would make one an aggressor.
Additionally, carrying a weapon would signify malicious intent. Especially if the weapon was concealed.
Is that simple enough for you to understand?
You cannot confuse the two legally.
Laci,
DeleteIf you truly believe the latter is the broader grant, then you are an embarrassment to your institutions.
Consider:
You may borrow my car.
You may borrow my car to go to the store to purchase medicine for your father.
Laci,
ReplyDeleteRegarding your comment at 6:47PM Mar 1st.
The Aymette Court also said it was the unqualified right of the citizens to keep arms useful in warefare, and that while the state could heavily regulate the bearing of arms, it could not ban the bearing of arms altogether. The Political right described by the Aymette court is far broader in terms of "who" (each citizen) and "when" (unqualified) arms may be kept than the miserly right described by justice Stevens.
But I see that you did not even try to counter my point that you were incorrect in claiming that the Heller majority had engaged in revisionist history.
In fact it was the Heller dissents which tried to revise history and raise the Militia Only theory to predominance when in fact there was only one judge who made such a determination among all the early state court cases.
It's pretty obvious you didn't read Aymentte or you would provide something substantive to back up your assertion. Please stop wasting my time.
DeleteSeriously, Mike, you need to be able to read and understand what it is that you read:
DeleteIn the case of Simpson vs. The State, 5th Yer. Rep. 356, Judge White, in delivering the opinion of the court, makes use of the general expression, that "by this clause in the constitution, an express power is given, and secured to all the free citizens in the State to keep and bear arms for their defence, without any qualification whatever, as to their kind and nature."
But in that case, no question as to the meaning of this provision in the constitution arose, or was decided by the court, and the expression is only an incidental remark of the judge who delivered the opinion, and, therefore, is entitled to no weight.
Come back when you are able to make an intelligent comment. Thanks.
Laci,
ReplyDeleteRegarding your Presser cite Mar 1, 2016 7:18PM
In addition to your cite the Presser court also said: "We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455." (end quote)
From the your cite and the above we learn:
1) the right to keep and bear arms does not encompass drilling or parading in cities and towns. (bad for people who want to parade in town and cities, not so much for those who simply want to keep and bear arms)
2) The second amendment is a limitation only on Congress, as were the other rights enshrined in the various provisions of the Bill of Rights before Incorporation.
3) The court acknowledges the pre -existence of the right to keep and bear arms, meaning the right existed before the Constitution, and the second amendment only guarantees that it shall not be infringed by Congress. The pre-existence of the right undercuts justice Stevens contention that the right only relates to service in the state militia since the right to keep and bear arms existed before there was a Constitution.
Tracking the Presser quote from Cruikshank back to it source, we see that the Cruikshank court did, despite justice Stevens difficulty with the meaning of "it" below, endorse the idea that the Second amendment protects the right of bearing arms for a lawful purpose -not merely to serve in the state militia.
From Cruikshank: "The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by theConstitution. Neither is it in any manner dependenton that instrument for its existence. The secondamendment declares that it shall not be infringed; butthis, as has been seen, means no more than that itshall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”(end quote)
How does a right "pre-exist" the document that created it? Seriously, one can claim a right, but it is meaningless without some legal basis.
DeleteAlthough, my assumption is that the "pre-existing" right language has something to do with it being "natural right". But, it falls into (2) in my post. Please address that point--where is the manifestation of "gun rights" in other common law nations?
Laci,
ReplyDeleteRegarding spot the difference in you post March 1, 2016 at 8:59 PM.
The main difference is that the second amendment has no qualifier on the right of the people to keep and bear arms.
Is it really your contention that adding "common defense" would have expanded the right to keep and bear arms under the second amendment? Your are well aware that the Senate proposed that addition but that it was rejected. You have written separately about the significance of Scribble Scrabble, but surely you must have asked yourself why did Madison steer clear of phrasing that led to so much confusion as to the scope of the right protected by the MA state provision? What was it that scribble scrabble said of the right without the restrictive clause?
Are you contending that second amendment does not encompass the right of the people to keep and bear for the defense of themselves because that restrictive clause (for the defense of themselves) was not included?
You're really not getting this are you?
DeleteThese three passages are obviously different, but you didn't fail me in your inability to spot the differences between them.
It's pretty obvious that you didn't bother to read the material: in particular Baron's essay "guns and grammar" since he explains this.
Then again, your lack of literacy and learning make any further discussion a waste of time on my part.
Don't bother trying to waste my time until after you have read the material and can demonstrate an understanding of it.
Laci,
ReplyDeleteRegarding your post at Mar 2, 7:45AM
You said:
1) There are rules of statutory interpretation:
a) Use the plain language of the statute
b) it is assumed that every word in a statute is meaningful and that it should be read in a way that is consistent.
c) things explicitly mentioned are covered, whereas one cannot infer something that is NOT explicitly mentioned. (end quote)
Regarding A&B: Yes, that is why the Heller majority read the dependent clause as absolute construction, because it is in fact written that way, even your professor Baron agrees. The normal function of absolute clause is to provide a rationale for the action that occurs in the independent clause. Therefore the most natural reading of the opening/dependent clause of the second amendment is that is meant to provide a rationale for the non-infringement of the right of the people to keep and bear arms, rather than to qualify the subject of the independent clause. In this way each word and phrase has the meaning that was intended. Justice Stevens insists that the dependent clause ought to be understood as placing a restriction on the right(when in service of the state militia) , but that is not how the sentence is written. He is going outside the text to surmise a more limited meaning than the plain text presents. He is also ignoring that the second amendment is part of the Bill of Rights and the courts do not normally look to the most narrow possible interpretation of those rights.
Regarding C: You make the same error repeatedly, insisting that restrictive clauses somehow expand meaning rather than restrict meaning.
Consider the below statements:
1) You may borrow my car.
2) You may borrow my car to go to the store to buy medicine for your father.
Which is the broader grant?
Could a person who is told #1 use my car to go to the store to by medicine for their father?
Could they use it for any other purpose?
Laci,
ReplyDeleteRegarding your post at March 2, 2016 at 3:29 PM.
From Aymette:
"it is somewhat difficult to draw the precise line where legislation must cease and where the political right begins, but it, is not difficult to state a case where the right of legislation would exist. The citizens have the unqualified right to keep the weapon, it being of the character before described as being intended by this provision. But the right to bear arms is not of that unqualified character. The citizens may bear them for the common defence; but it does not follow that they may be borne by an individual, merely to terrify the people or for purposes of private assassination.And, as the manner in which they are worn and circumstances under which they are carried indicate to every man the purpose of the wearer, the legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence"(end quote)
Stevens would have shit his pants if the Heller court had held for the same Political Right as the court in Aymette.
More from Aymette:
"The section under consideration, in our bill of rights, was adopted in reference to these historical facts, and in this point of view its language is most appropriate and expressive. Its words are, "the free white men of this state have a right to keep and bear arms for their common defence." It, to be sure, asserts the right much more broadly than the statute of William & Mary. For the right there asserted is subject to the disabilities contained in the act of Charles II. There, lords and esquires, and their sons, and persons whose yearly income from land amounted to 100 pounds, were of suitable condition to keep arms. But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms. But to keep and bear arms for what? If the history of the subject had left in doubt the object for which the right is secured, the words that are employed must completely remove that doubt. It is declared that they may keep and bear arms for their common defence. The word "common," here used, means, according to Webster: 1. Belonging equally to more than one, or to many indefinitely. 2. Belonging to the public. 3. General. 4. Universal. 5. Public. The object, then, for which the right of keeping, and bearing arms is secured is the of the, public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution. The words "bear arms," too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not, therefore, secured by the constitution"(end quote)
laci,
ReplyDeleteRegarding your post at March 2, 2016 at 3:56 PM
We both know which is broader, and that the facts are not on your side. That is why you are pounding the table so furiously.
laci,
ReplyDeleteOh but I have read Baron's essay, as well as his amicus brief in Heller(BRIEF FOR PROFESSORS OF LINGUISTICS).
The best part was his very confident assertion that the people at that time would have understood the words "bear arms" in the second amendment as an idiom.
However the very fist commentator, Tenche Coxe, explained what became the second amendment thusly:
"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”
So much for Baron's confidence -Coxe's article mocks Baron's argument as Coxe is not merely bending a supposed idiom. When Coxe wrote "Their right to keep and bear their private arms" he was certainly not treating "bear arms" as any sort of idiom, bent or otherwise, nor did he even mention the militia, let alone give any hint whatever that he(Coxe)thought the right was tied to militia service.
Laci,
ReplyDeleteRegarding your post at March 2, 2016 at 4:02 PM
You asked: How does a right "pre-exist" the document that created it?
As the courts in Presser and Cruikshank stated, the right does not depend on the Constitution for its existence (so the Constitution could not have created it) , the amendment says only that the right shall not be infringed, meaning not infringed by Congress.
Your inability to grasp the teaching of those courts shows you are way off base in your understanding of the issue. The second amendment did not create the right to keep and bear arms any more than the first amendment created the freedom of the press. Those rights existed prior to the Constitution and are in no way dependent on it for their existence, though it is to our great benefit that the constitution contains guarantees against infringement of those rights.
Laci,
ReplyDeleteAddressing each of your questions directly:
1. The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written. Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted. You had to have your back to the wall to be able to kill someone.--carrying a weapon would create a presumption that you intended to do harm.
---
That is a non-sequitor. The right to keep and bear arms is hardly a license to kill. Refer to any course or teaching on concealed (or open) carry and the responsibility which that entails. The most obvious response is that many states today have right to bear arms but do not have stand your ground laws and require that one avoid using deadly force whenever possible.
2. Where are the other versions of "gun rights" in Common Law nations?
---
Many early commentators remark that our right to bear arms is broader than that of our mother country. The judges in Aymette v TN also comment that the right here is much broader in terms of who is protected in their right to keep and bear arms. Gun grabbers like to quote the language from Aymette that immediately follows the below quote, but refuse to acknowledge that the Aymette dourt did not limit the right to those "in service in the state militia" as Justice Stevens insists.
From Aymette:
"The section under consideration, in our bill of rights, was adopted in reference to these historical facts, and in this point of view its language is most appropriate and expressive. Its words are, "the free white men of this state have a right to keep and bear arms for their common defence." It, to be sure, asserts the right much more broadly than the statute of William & Mary. For the right there asserted is subject to the disabilities contained in the act of Charles II. There, lords and esquires, and their sons, and persons whose yearly income from land amounted to 100 pounds, were of suitable condition to keep arms. But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms." (end quote)
3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought. It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
---
However, "the right of the people to keep and bear arms" was mentioned and no qualifiers were attached to that right in the second amendment. That right was understood by men such as Roger Sherman and James Wilson to encompass self defense as well as a political right.
Laci,
ReplyDeleteResponses to remaining questions below:
4. regulation of private arms has always been a part of the common law.
---
And it remains so today. The Heller decision struck down a complete ban on keeping hand guns but did not say that all regulation of private arms was unconstitutional. In fact they went out of their way to say the opposite and that their decision would not impact many long standing regulations.
5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
6. Why the US Constitution would concern itself with matters of "personal defence", especially in light of point (1) above?
---
For the same reason the constitution concerns itself with other matters of personal defense such a requiring trial by jury, preventing government searches of private homes without probable cause, protection of private property. It would be damn silly to claim to be protecting the people in common without protecting individual rights.
7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.
---
But the right of the people to keep and bear arms is mentioned in both state and federal constitutions. Justice Stevens insistence that the right protected by second amended is a different right to keep and bear arms than protected in state constitutions is at best plain silliness but more likely old fashioned evidence barring. From the beginning state courts have looked to decisions of other states and to differences in language among the state constitutional provisions and the second amendment to determine the scope of the right to bear arms. Later state courts looked to decisions of federal courts regarding the right protected by the second amendment. And lastly the Supreme Court in US v Miller looked to the various state right to bear arms provisions. All of this cross referencing by the state and federal courts would have been pointless if those courts saw the right to bear arms provisions of the various states as protecting an altogether different right than that of the second amendment.
Moreover you question number 7 is another instance of the often repeated fallacy that restrictive clauses ("for the common defense" for example) expand meaning. They do not, restrictive clauses restrict meaning.
Consider:
A) You may borrow my car.
B) You may borrow my car to go to the store to purchase medicine for your father.
Which grant is broader?
Does the person given grant A have the right to borrow that car to go to the store to purchase medicine for their father? They certainly do, and also may borrow that car for other purposes.
You say elsewhere that "If a law explicitly mentions one thing, but does not mention another, you cannot infer what was not mentioned." But you fail to grasp that the 5 words Justice Stevens wants added to the second amendment (when serving in the Militia) are not there , they were not in the text. This rule of construction ought to be ever more closely followed when considering a provision of the Bill of Rights. Since when has the court taken upon itself to read any right enshrined in the Bill of Rights in the most restrictive sense possible?
OK, you really are not getting it. And if anyone is pounding the table it is you since you are repeating questions that have been asked and answered already.
ReplyDeleteIn your statement about which right is broader, the Second Amendment's right is tied to a well regulated militia and one cannot separate the two clauses. Prof Baron explains it quite well. I won't bother trying to do what Prof. Baron does quite well.
So the Second Amendment is quite specific, as are state constitutional provisions. The three examples I gave made that point.
What Justice Stevens did was to reiterate the first clause which would have been seen as superfluous to the 18th Century mind.
What I wrote is a very simple concept that you are failing to grasp: especially since you are not aware where the term "common defence" is mentioned and how that could relate to the context of the US Constitution and its purpose. Also, why the Second Amendment would have been added to the Constitution.
The grant of arms in the English Bill of Rights was quite specific: even more so than the Second Amendment. The English Bill of Rights said the right was limited by law.
Please stop wasting my time.
The Second Amendment relates to the Military.
DeleteSelf-defence relates to Criminal law.
These are two separate topics.
This would appear to be the essence of the essence of the problem with Mike Hansberry's failure to understand the 2 A of the U.S. Constitution.
ReplyDeleteThe wording of the 2A makes it very clear that it applies to the common defense, and to the formation and regulation of militias, which are not the same thing at all as personal weapons for personal defense.
It appears that Mike Hansberry is either being intellectually dishonest or willfully ignorant of the larger context of history that led to the abandonment of the earlier Articles of Confederation (and perpetual unity) and the replacement of a stronger federal entity through the Constitution.
While it IS true, as Hansberry notes, that regulation of private arms has existed for a very very long time, in both common law and subsequent more formal law, in fact dating back centuries before the existence of the US of A, it is NOT true that it follows the 2A is an extension or continuation of that tradition of common law.
There are many very clear pieces of legislation that define what a militia is, notably the 1903 militia act which defines the only official, sanctioned militia as the National Guard.
Unless the National Guard in your state is showing up to prevent your home being looted during some form of national disaster or significant civil unrest, the National Guard has nothing whatsoever to do with your personal defense or the defense of your 'castle'.
State law and federal law - and local law - are all different from each other, and public defense is distinct and separate from private defense.
We are not Switzerland; our armed forces members do not bring home their military weapons, but even in Switzerland, those weapons are recognized as distinctly for use in public defense, not to take pot shots at burglars or other personal use.
To attempt to conflate those things which are not the same or closely related is dishonest and frankly not very bright or well informed.
My state or local sales tax is - to use an analogy - entirely separate and unrelated to an entity like the FDIC, in spite of the fact that both the Federal Deposit Insurance Corporation and sales taxation both deal with money, and with some level of governmental regulation.
The 2A - no matter how poorly it was addressed in Heller - is about National Defense, not personal defense.
To claim for example, as Hansberry does, that the 2A contains "no qualifier on the right of people to keep and bear arms" is ridiculous; the qualifier is clearly membership and participation in the militia in defense of the state.
" A well regulated militia being necessary to the security of a free State".
We now fund the arms of our militia, and those arms do NOT belong to individuals. Rather the National Guard and our other branches of our armed forces make it quite clear they do NOT want members of our armed forces bringing their own weapons onto our military bases or to wear them during their periods of service.
I don't believe you can make a clearer distinction between the differences in the focus of the 2A as distinct and separate from private, personal defense than THAT.
Rawle makes it clear that the two phrases are corollaries.
DeleteJoseph Story, Commentaries on the Constitution 3:§1201 commenting on US Constitution, Article 1, Section 8, Clause 16:
Delete§ 1201. It was conceived by the friends of the constitution, that the power thus given, with the guards, reserving the appointment of the officers, and the training of the militia to the states, made it not only wholly unexceptionable, but in reality an additional security to the public liberties. It was nevertheless made a topic of serious alarm and powerful objection. It was suggested, that it was indispensable to the states, that they should possess the control and discipline of the militia. Congress might, under pretence of organizing and disciplining them, inflict severe and ignominious punishments on them. The power might be construed to be exclusive in congress. Suppose, then, that congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence, and prostrate at the feet of the national government. It might also be said, that congress possessed the exclusive power to suppress insurrections, and repel invasions, which would take from the states all effective means of resistance. The militia might be put under martial law, when not under duty in the public service.
Mike says, "Regarding C: You make the same error repeatedly, insisting that restrictive clauses somehow expand meaning rather than restrict meaning.
ReplyDeleteConsider the below statements:
1) You may borrow my car.
2) You may borrow my car to go to the store to buy medicine for your father."
Except Mike, that's 100% backward and so NOT analogous.
The correct analogy would be:
BECAUSE you need to go to the store and buy medicine, you may borrow my car.
The borrowing of the car is DEPENDENT upon the need. The act is borrowing, justified by the need. Equally, the "Because you need to borrow my car" is not by itself a stand alone statement.
Period.
Penigma,
DeleteThe dependent clause of the second amendment provides a rationale for the non-infringement of the right of the people to keep and bear arms. Providing a reason for the action which occurs in the independent clause is the normal function of absolute construction. Absolute construction is a sentence modifier, not a modifier of the subject (the right...) of the main clause.
Moreover the action in the independent clause is not the creation of a right for a particular purpose, but rather the guarantee the non-infringement of an existing right, one that is presented without qualification.
Getting back to Justice Stevens backwards application of restrictive clauses, language such as "for the common defense" does not enlarge the scope of the grant, instead it limits the scope. Justice Stevens' claim that "the right of the people to keep and bear arms" is more narrow than "the right of the people to keep and bear arms in defense of themselves and the state" is simply ridiculous.
Let's try your analogy again with some tweaks:
BECAUSE you need to go to the store and buy medicine, your right to travel shall not be infringed.
As in the second amendment, the dependent clause above offers a rationale for the non-infringement of an existing right. But it does not define or restrict the right to travel.
Let's write it again in still more general terms: Because it is necessary to go to the store for medicine, the right of the people to travel shall not be infringed.
And we haven't even discussed the implication of the words "free state" as yet. But here is a hint. Read Memorial and Remonstrance and count how many reasons that relate to individual liberty Madison and the other "faithful members of a free State" give for opposing "A Bill establishing a provision for Teachers of the Christian Religion."
Read also the first paragraph of Federalist 46 in which Madison says "The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other" (end quote)
Contrast the above with Stevens' insistence the people are merely agents of the various states, with a right to keep and bear arms only in service to the state.
The entire second amendment, dependent clause as well as independent clause, is aimed at protecting the liberties of the people. This should not be surprising as the second amendment is a provision of the Bill of Rights.
However Stevens misreads the dependent clause and then tries to shoehorn his myopic view onto the independent clause, insisting on reading into the right of the people to keep and bear arms a qualifier (when in service of the militia) that does not exist in the actual text.
Dog gone,
DeleteYour claim that the dependent clause "A well regulated militia being necessary to the security of a free State" qualifies the subject of the independent clause (the right..) is simply incorrect. The Professors of Linguistics identified the dependent clause as absolute construction.
Providing a reason for the action which occurs in the independent clause is the normal function of absolute construction. Thus the dependent clause of the second amendment provides a rationale for the non-infringement of the right of the people to keep and bear arms. Absolute construction is a sentence modifier, not a modifier of the subject (the right...) of the main clause.
A well regulated militia, which was a military entity, not for private and personal defense, as an auxiliary to a standing army, indicates the intent and purpose of the 2 A. There is NO mention of private and personal defense, and given the nature of the document, and the documented discussions that took place surrounding it, it is clear that it ONLY applies to the militia. The main purpose of an available militia was to reduce the size (and therefore expense) of a standing army. You cannot take the 2A away from the context of the articles of confederation, or the situations which prompted the drafting of the constitution -- NONE of which had diddly squat to do with personal defense.
DeleteThe heck with your anonymous professors or linguistics, the structure of the amendment is quite clear, and the lengthy and well established interpretation of the 2A as referring strictly to military state or national defense (as distinct and separate from personal/individual/private defense) was well established. It was poor jurisprudence that overturned that considerable body of legal SCOTUS decisions in Heller -- and damned dishonest as well on the part of those justices who did so, notably Scalia, who promised quite solemnly in his confirmation hearings to respect and revere stare decisis.
Penigma,
DeleteTry to keep up. Baron is your professor of Linguistics. He's the guy who insists that the word "arms" in the second amendment is the object of "keep" and at the same time part of a supposed idiom (bear arms).
Well established? Where? The earliest state courts read the right to keep and bear arm far more broadly than justice Stevens (see earlier discussions on this thread of Aymette and other state court decisions) . Heller did not overturn any supreme Court precedent. And the Heller dissent itself departed from earlier federal circuit court decisions that held for a purely Collective Right (see earlier discussion posted March 2, 2016 at 11:56 PM regarding Silveira, 9th) Circuit).
Mikey, you have a problem. Baron is not our professor of linguistics. While it is true that some of the hacks supporting the 2a as an individual right have tried to make a claim about absolute construction, that doesn't make it so. You wanting to make it so doesn't make it so.
DeleteWorse you are a sloppy and dishonest scholar when you fail to acknowledge and reference that.
https://www.law.cornell.edu/wex/second_amendment
Such language has created considerable debate regarding the Amendment's intended scope. On the one hand, some believe that the Amendment's phrase "the right of the people to keep and bear Arms" creates an individual constitutional right for citizens of the United States. Under this "individual right theory," the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language "a well regulated Militia" to argue that the Framers intended only to restrict Congress from legislating away a state's right to self-defense. Scholars have come to call this theory "the collective rights theory."
Btw let me highlight from that Cornell link that pretty much all of the more recent decisions uphold regulating the 2a - something you ignorantly claim cannot occur to a right.
DeleteRecent case law since Heller suggests that courts are willing to, for example, uphold
regulations which ban weapons on government property. US v Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (upholding defendant’s conviction for bringing a handgun onto post office property);
regulations which ban the illegal possession of a handgun as a juvenile, convicted felon. US v Rene, 583 F.3d 8 (1st Cir. 2009) (holding that the Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment);
regulations which require a permit to carry concealed weapon. Kachalsky v County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York law preventing individuals from obtaining a license to possess a concealed firearm in public for general purposes unless the individual showed proper cause did not violate the Second Amendment.)
And there are problems with the incorporation as well:
However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.
Last chance Hansberry - shape up, answer all the questions raised, or we're done.
You are sloppy and ignorant ergo you lose.
Ms. dog gone,
DeleteWho wrote the below?
"I really don't want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the "preferatory" clause far more weight than it was given in the Heller decision"
Mr. Hansberry, it does not matter any more in this argument what your professor says about absolute construction than a signed note from your mother saying the same thing.
DeleteThe linguistics professor has no legal standing to establish a definitive decision; he can only offer an opinion, and informed opinion which is not more informed than the assembled wisdom of those many decades of SCOTUS legal opinions and decisions.
Rather, as the Cornell link I provided demonstrates, there remains considerable dissension and controversy over the absolute construction interpretation, and it is NOT, emphatically, definitive.
So, lacking that quality of being definitive, it falls into the category of you like it, so you want to believe it matters.
It matters not at all in the overall accumulated decisions on the 2A, and it is as likely that interpretation will be overturned, given stare decisis, than that it will remain in effect.
Unless and until you learn the distinction of what does and does not establish a definitive status, and especially until you give credit for the unsettled status and the lack of judicial and more broad legal consensus necessary for absolute construction to carry more weight than it does, you are both a poor scholar and lack intellectual rigor and integrity.
So while it might make you feel better to repeat rubbish, it remains rubbish and you remain ignorant.
Your argument fails, and you look like you have the intellect of a parrot for repeating endlessly things which you clearly do not understand well.
I notice you continue to avoid answering the question about your legal background and expertise. This is an appropriate question for you to answer, because it goes directly to your failure to understand that the opinion of the professor you keep yammering about is meaningless in law.
It is pretty fundamental to expect someone to understand what is and is not definitive as an argument and as a source.
Again, you fail. You lose. And unless you proffer something better AND DIFFERENT, future comments will not be published, on the grounds that they are tediously repetitive, and lacking in merit and substance.
Dog gone,
DeleteHere is something different. It is a three year old post from Laci which refers to the prefatory clause of the second amendment as an absolute. How can this be? You said only the hacks supporting the 2a as an individual right claim the prefatory clause is absolute construction.
http://penigma.blogspot.com/2013/09/so-youve-found-obscure-law-and-you.html
Still nothing new Hansberry. Regardless if the source is a professor, or even my esteemed colleague Laci, there is no consensus that the 2A confers an individual and personal right rather than referring exclusively to militias for collective defense.
DeleteI was clear on that with the Cornell link.
YOU have failed to prove otherwise. Again, you lose.
SO come up with something other than claims of an individual right to personal defense, for which clearly more than 200 years of SCOTUS decisions and other federal court decisions (where there was legitimate standing to rule on federal law and the constitution existed, unlike state law and state courts) show otherwise, as do a lot of modern jurisprudence experts.
You haven't refuted me, you haven't refuted Cornell, you haven't refuted Laci, and you have not refuted Pen.
That is what losing looks like.
DeleteWow, Mike,that is the ultimate in intellectual dishonesty--which I can attest to as the writer of that piece.
That is the EXACT opposite of the point I was trying to make.
The conclusion I draw is:
"If anything, this argument works best on people's historic ignorance, as does most of the gun loon argument."
Now, would you please shut up or find a different dead horse to beat
Laci and doge gone,
DeleteI said the prefatory clause it absolute construction.
dog gone said: "There is no such thing as 'absolute construction'. I have no doubt that not only am I more educated than you are in civics, but in linguistics, and semantics, logic, rhetoric and grammar."
However professor Baron said in the linked essay: "The phrase a well regulated militia being necessary to the security of a free State is known in grammar as an absolute construction."
So which of us was correct?
I said Professor baron was your side's professor of linguistics, dog gone denied this repeatedly.
Again, which of us was correct?
The prefatory clause does not modify the subject of the main clause, to continue to claim it does (as dog gone has), even though your own side's linguistic expert says otherwise, THAT is intellectual dishonesty.
Lastly Laci,
Your conclusion "If anything, this argument works best on people's historic ignorance, as does most of the gun loon argument." is actually from a different OP, (So you've found an obscure law and you think it proves your point??? ) but contains the same errors as usual. You said in that OP that the prefatory clause "announces the purpose for the right", but that is not true. The prefatory clause announce the reason for the non-infringement of the right. The right of the people to keep and bear arms was not created by the second amendment as per Cruikshank and Presser.
And you assertion that "Any educated federalist ..." apparently does not include Tenche Coxe as his published commentary mocks both your assertion and Baron's.
Your assertion that the prefatory clause is absolute, definitive, or represents a consensus is incorrect.
DeleteTenche Coxe can make a commentary, but it is still opinion of less significance than the stare decisis prior to Heller.
When you have a legal consensus as to the prefatory clause, then, and only then, do you have anything other than wishful thinking.
So -- again --- stop beating this dead horse, and find yourself a new one. This one is a loser argument for you.
Mike,
ReplyDeleteSuccinctly, you're mistaken. English has purpose. When I say, "Because you need to save your money, I'm going to pay for your new winter coat rather than you paying for it." is both logically AND constructively creating a dependence. You have claimed independence of the second part, but only claimed it, you have not proven it. Further, in logic we can grasp that the person saying "I'm paying" is predicating that act on the need. Should the need disappear, it is logical that the act would not follow. Last, Laci is perfectly correct in that the language GIVES the justification, there is no ability to invent other motive. it might be there were other movites, but they were not presented. Not only can we not infer, because doing so is speculative and "activist", we HAVE the motive they DID give us before us and should so use it.
Still, here's the bottom line, the right as an individual, has now been codified. It's irrelevant whether I can prove you wrong or show that language is clearly stipulating the act to the justification because the question is moot.
Let's stop wasting time then. I agree with Laci's logic, but in the end, it's howling past the moon. The right has been invented and incorporated. Whether I think it was the founder's intent is not material, nor is what you think, nor anyone else.
MUCH more material is whether the states have the right to place reasonable limits on ownership. Clearly Heller implied they did, even more clearly Mcdonald SAID they do so have such rights.
Consequently, restrictions like restricting magazine capacity or banning certain types of weapons because they are unnecessary for the preservation of the individual rights, is ENTIRELY constitutional.
Side bar- Patrick, you are a crazy reactionary. I've done more in my life, I guarantee you, to defend your freedoms, than you've ever done to defend mine. If i come knock on your door, peacefully, and ask you to surrender your mahcine gun, you have a lawful obligation to surrender it, under our constitution, IF the state has banned that type of weapon and such a ban comports with the dicta of Heller. Your remedy if you disagre is to go to court and win your case, just as the state went to court and won it's case to impose such a law. Doing anything else is sedition and murder, not defending any right, at least not a constitutional one. It is defending a right you've invented to justify your hatred and zeal to hurt others with whom you disagree. That makes you a kook and a tyrant, not a liberty-loving American. To that end, if you and your kookey minded brethren prefer to form a militia and stand in the street to defend your right to own machine guns, make no mistake, I'll be just as glad to climb into my M2/M3 and stand up for defending the idea of democracy and majority rule and that you don't need a machine gun any more than you need Sarin gas. You may THINK you do, but that just makes you a kook. Long and short, son, I don't scare. I may be sorrowful for the sorry state of things in this country as crazy zealots like you ruin it, but I don't scare. 170 years ago kooks like you decided to take up arms to defend "liberty", the liberty to enslave people. And 170 years ago people like me took up arms and put you down. It won't be needed this time because there are very VERY few of you kooks, and like Cliven Bundy, we'll just wait until you fall asleep in front of your TV and then come arrest you, but make no mistake, you don't scare anyone. you're just crazy. If you prefer to act criminally, well, you'll be treated as such. Your rights stop at your feet and they don't include the right to own any kind of armament you want.
Penigma,
DeleteEven the Professors of Linguistics who wrote in support of the government could not deny the simply facts that "A well-regulated militia being necessary to the security of a free state" is the dependent clause and is written as absolute construction. The independent clause is "the right of the people to keep and bear arms shall not be infringed."
As per earlier Supreme Court (Cruikshank and Presser)teaching as well as basic English comprehension, the right protected is not created by the amendment. The amendment only says that is shall not be infringed.
The prefatory clause provides a rationale for the non-infringement of the right. But that rationale does not place a restriction upon the right, instead it highlights the importance of the right. You are suggesting that the right would be infringed, maybe completely denied, but for the reason given. That makes little sense as we are reading a provision of the Bill of Rights and we do not normally assume that the government is in the business of denying rights. But that is besides the point as the reason was given, as well as the guarantee, both are part of the text and cannot be ignored.
The deniers of a broad individual right constantly cite that cannon of interpretation that says no phrase can be ignored. But your insistence in reading the prefatory clause as a restriction on the right of the people to keep and bear arms is not supported by the actual text or grammar. Your approach subtracts from the guarantee made to the people and denies the full meaning of the independent clause.
Lastly, the Heller majority actually downplayed the full scope of the right guaranteed by the second amendment. Would you be happier had the Heller majority taken the Aymette court's interpretation to heart and held that the citizens have the unqualified right to keep those arms useful in warfare?
The Heller court focused on the rights of the people in their normal activities (and so was more like Andrews than Aymette), and steered clear of what the Aymette court called the great Political Right. Justice Stevens' could not stomach either the Andrews decision or the Political Right of Aymette and instead tried to force the "militia only" interpretation, which was a position held by only a very tiny minority when all the early state court decisions are taken into account.
Penigma,
ReplyDeleteThe court in Nunn v State (GA) wrote that the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State, depended on the non-impairment of the right of the people to keep and bear arms. So once again, you have things exactly backwards.
But I guess those justices in Nunn, along with the other early state court justices, save justice Dickensen in State v Buzzard (Ark,)were just a bunch of activists inventing rights and so forth, eh?
Mike Hansberry, Nunn v Georgis is irrelevant. It was in the late 1830s, and was binding on no one nationally. It has been superseded by numerous legal decisions, including those by the SCOTUS, which found it to be wrong. Further, the 1903 militia act, and of course, Presser, also determined it to be wrong. You are cherry picking your arguments, and you are refusing to acknowledge the numerous state and federal decisions which invalidated Nunn. It is not ONLY the Arkansas decision, which was consistent with mainstream legal decision.
DeleteI would further refer you to the 1903 Militia act, which removed any question as to what the 2A refers to as regarding militias.
SO YOU sir are the one who has information backwards.
Again - Laci asked if you were an attorney, as he is (licensed in multiple jurisdictions). Unless I missed your answer, it would appear clearly you are not a lawyer and certainly no legal scholar.
You need a better class of experts to parrot sir; clearly you are not presenting an informed opinion of your own.
""To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive."
Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840)
Mike,
ReplyDeleteFirst things first, I wasn't uncivil to you, you will not be so to me. This is my blog and if you can't keep a civil tongue in your head, you won't be allowed to contributed.
Second, I never, not at all, disagreed with the idea that structurally the first part is dependent, linguistically, on the second. That's precisely WHY the second doesn't stand apart from the first, it's required to make sense of the whole, you can't separate them.
However, what IS dependent in the second part is the definition of WHY I (or in this case Congress) am acting in a certain way. I am taking this act, non-infringement, because of the need. That's not a dependency per se' of the second on the first, it's justification of the second BY the first.
Regardless, Mike, I'd appreciate it if you'd cease arguing to a dead point. I already stipulated that by the virtue of Heller, the right IS individual and IS incorporated.
So let's focus on the actual reason to now converse. Namely, is it constitutional to limit this right? Heller and McDonald say YES, I agree. Based on what do you not?
Actually, since Heller was wrong, Heller can - and probably will - be undone eventually. Sooner now that the dishonest Scalia is gone.
DeletePresser made it clear the right was related to belonging to the organised militia and that reserve militia had no rights.
Miller said the right was tied to Article I, Section 8, Clause 16. Quote:
The Constitution, as originally adopted, granted to the Congress power --
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
Penigma,
ReplyDeleteIs it constitutional to infringe on a right? No, nor is it constitutional to limit an expressed right other than by amendment. Instead the question ought to be -what is the scope of the right? When the government arrests counterfeiters, no one decries a supposed abridgement of the freedom of the press. This is because the freedom of the press never extended to a right to print money.
Despite all the vitriol heaped on the Court's decision in Heller from those on the Left, Scalia and the rest of the majority went out of their way to say long standing regulations were not at risk.
Moreover some on the Individual Rights side complain that the Heller court, by focusing on self defense and by not fully enunciating the Political Right to keep arms useful in warfare (as in Aymette v TN and US v Miller) undercut potential challenges to the Federal Firearms Act. Of course the Heller case only concerned the constitutionality of a ban on keeping of hand guns, so the constitutionality of keeping machine guns was not in question, but the court nonetheless devoted several pages of their opinion to discussion of the limits of the right to keep and bear arms.
Far from an invented right, what the Heller court gave us was a somewhat watered down version of the original right to keep and bear arms.
From Heller:
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” (end quote)
It is perfectly constitutional to limit or restrict a right. Where do you get the notion it is not? Do you understand you can't just yell fire in a crowded theater because you feel like it? How about the limitations provided by slander and libel laws on unrestricted free speech? Or the fact that freedom of religion does not include human sacrifice, regardless of your beliefs -- or polygamy for that matter.
DeleteSheesh - even Heller found that it is perfectly legal to restrict aka infringe on the 2A. You are demonstrating very sloppy scholarship here. Shame on you.
It is factually incorrect that militia weapons were private weapons. And it is factually inaccurate that they were ever so after the civil war and the formalization of what is and is not an applicable militia, aka the National Guard.
It is a FACT that private arms were relatively rare at the time of the American Revolution, and it is a FACT that many of the participant on the colonial side were armed by capturing Royalist armories, taking THEIR weapons, in addition to those militias that possessed their own armories of weapons distinct from private ones.
dog gone,
DeleteIf you truly believe "the freedom of speech" protects inciting of riots, then you need to go back to civics 101.
If you believe that Congress can legitimately make a law requiring prior restraint on the publishing of all works (with or without SCOTUS rubber stamping) then there is no point in arguing further.
Mr. Hansberry, I'm beginning to wonder if you lack the capacity to read for comprehension.
DeleteLet me review for you. You made the statement that a right could not be infringed, restricted or limited.
I gave examples where clearly rights are limited and restricted by law, and still consistent with the constitution.
For example, it is illegal to yell fire in a crowded theater where no fire exists. You could go to jail or at the very least face fines for doing so. The existence of penalties and of certain conduct being deemed criminal is a restriction on free speech; it does not have to be prior restraint for something to be restraint - as in libel and slander laws.
When I return to civics 101, thank you, it is not as a student, but as the instructor.
You appear to be in need of the coursework.
I notice you have failed to respond to repeated questions as to your status as a legal professional; I can only presume you decline to answer because it would underline your lack of education and sloppy scholarship in that area.
Personal defense, including regulation of dueling, has always been a very separate branch of the law, prior to the poor decision of Heller.
I would encourage you to study the circumstances that led to the abandonment of the Articles of Confederation and their replacement with the U.S. Constitution, not only rebellions, but also internecine conflicts like the Yankee Pennemite War, which involved citizen MILITIAS from different states engaged in fighting EACH OTHER over disputed boundaries.
Events such as that conflict directly gave rise to the 2A, NOT issues of individual home defense and private weapons.
Mr(?) dog gone,
DeleteGod help your students, because you surely are not.
If you are teaching them that the "Freedom of Speech" can be abridged, or that the right of the people to keep and bear arms can be infringed, despite the clear commands of the Constitution you are spreading non-sense.
Teacher:
Class, What does it mean when the Constitution says "Congress shall make no law...abridging the Freedom of Speech?"
Johnny: ah, that means Congress cannot abridge the Freedom of Speech, which means at its core that congress cannot make laws requiring prior restraint.
Teacher: No Johnny, it means Congress CAN abridge the freedom of speech. Sheesh, you need to bone up on your reading comprehension.
Johnny: sure thing teach.
Again, you fail to read for comprehension what I wrote.
DeleteYou are also apparently unaware of the many instances where the SCOTUS has affirmed that it is consistent with the Constitution that rights may be restricted. Notably in HELLER.
Let me know when you find any state national guard where you bring your own weapon, and it is allowed...
Foolish you -- you receive an F for your understanding of civics, and for your failed grasp of both history and law.
And I notice you are still dodging answering the question about your qualifications as a lawyer.
Your poor grasp of civics, history, law (and legal decisions especially) demonstrate you are merely parroting what you hope are more intelligent opinions than those you yourself formulate.
To continue, Mr. Hansberry, to underline your ignorance for you... you reference prior restraint of the first amendment, aka censorship. Apparently you are completely unaware that we have many instances of court sanctioned censorship, including SCOTUS preservation of it, for example where national security is concerned, there have been historic instances where the media has been constrained and prevented from publishing stories.
DeleteNO CONSTITUTIONAL RIGHT IS ABSOLUTE.
For a few examples, you might want to check out this item from the William and Mary law review. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2183&context=wmlr
It is worth noting that four out of the five first presidents of the United States, under the constitution were themselves lawyers, and were educated at William and Mary, including the primary drafter of the Constitution, and an author of the Federalist papers, James Madison. Examples of restriction of the 1A date back to those first presidents aka our founding fathers.
Your ignorance is showing Mr. Hansberry. These are the kinds of knowledge that one should be required to have to teach civics, not your simplistic and ill-informed half-baked notions of fact.
Mr dog gone,
DeletePerhaps you need to reread my post at March 18, 2016 at 6:41 PM:
"If you believe that Congress can legitimately make a law requiring prior restraint on the publishing of all works (with or without SCOTUS rubber stamping) then there is no point in arguing further"
Apparently you are unaware of the meaning of the word "all". I on the other hand am aware of the exceptions to prior restraint doctrine, which is why I used the word "all."
You do make an excellent point that many presidents were lawyers, or at least highly educated men, as were many of the framers. Yet you persist in the non-sensical claim that the second amendment places a qualification on the right of the people to keep and bear arms, as though the framers were semi-literate bumpkins who did not understand how to write a qualifier, and were unaware of the proper function of absolute construction.
And to quote the language from Heller McDonald where the conservative court asserts the 2A is not an absolute right, but rather a right which can be restricted, limited, or if you prefer, infringed:
Delete"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884)."
Hansberry. TRY TO READ FOR COMPREHENSION.
DeleteYOU wrote that rights were absolute. I wrote that rights could be limited. YOU wrote your silly drivel about "all"; I NEVER addressed ALL, other than ALL RIGHTS are subject to restriction - which they are.
You have yet to address that all of the rights in the constitution are subject to limits. PERIOD. Therefore you clearly do not read well for comprehension.
I made the point that the example of limits in the W&M law review to the 1st Amendment, (WRITTEN BY MADISON, who was educated at William and Mary, and a lawyer,) proved my point. Additionally, it underlines why I am qualified to teach civics and you are not capable of basic understanding.
That other presidents were lawyers is irrelevant. Your nonsense about bumpkins is ridiculous, ludicrous, and irrelevant.
Your attempt to avoid the points of the specific by your rubbish generalizations only again underlies your inability to use logic, to argue coherently in support of your failed position, or to quote anything specific.
There is no such thing as 'absolute construction'. I have no doubt that not only am I more educated than you are in civics, but in linguistics, and semantics, logic, rhetoric and grammar.
You sir, have demonstrated yourself a fool, and a particularly ignorant fool at that.
So, are you finally willing to admit you are not well educated in the law (or history, or the Constitution)? Or do you still lack the moral courage and integrity to admit your ignorance, which you have so eloquently displayed here?
Man up.
And it is MS. Dog, not Mr.
Allow me to introduce myself, somewhat belatedly, Hansberry.
DeleteWhile Penigma was the founder of this blog and its namesake, I'm the managing editor here, in addition to writing (and editing) for half a dozen other platforms, some state or regional specific, others national and international.
I have the integrity to know a topic before I write or comment on it, personally know it in depth and breadth, in specific detail and complexity. I provide, and demand in turn, rigorous analysis and serious argumentation, and substantive sources, not the facile bullshit you have proffered here.
I believe I and my colleagues Pen and Laci have given you more than adequate scope to express a point, and you have failed to make good use of it.
So, unless you can do better, we are done here with publishing your comments.
"Better" would include a clarification from you of your status in the legal profession and any legal education.
As I do not expect you to suddenly improve your education or capacity to reason, I believe our interaction here is concluded.
You lose.
DG, I don't think we win by restricting Mike's ability to speak, even if what he says is the same thing over and over again without ever addressing his own contradicting argument. So, I would ask that we continue to allow he, or anyone, who remains civil to post. To that end even, we should avoid name calling as it makes us appear base by contrast.
DeleteMike, whether you are a lawyer is to my mind less relevant than if you are in fact well versed in the legal interpretation and more importantly IMPACT of the actions of various decisions. Any of us may cherry-pick various things from the dozen or so truly impactful cases on the 2nd Amendment but you have to "own up to" the impact those decisions have had or you wind up sounding like someone quoting the bible who doesn't really grasp the passages. Saying the bible advocates genocide, for example, because of Elijah, or saying it advocates stoning people because of Leviticus, doesn't make it true.
Laci is an attorney who very successfully argues cases on the 2nd Amendment and has demonstrated on this blog time and again a deep grasp of the laws, the constitution, the interpretation of various laws under that document, and of the impact of those decisions. You, by contrast, have shown literacy exceeding mine in knowledge of the text, but have then followed that with comments which did not agree with each other.
DeleteHere's where things seem to stand (in a large nutshell)
1. Up until McDonald, the 2nd Amendment had never been incorporated.
2. With some variation, it had been (outside Heller) tied almost entirely to the right of state's to form militia and of the people to bear arms in that purpose.
3. After the formation of a standing army and even later the formation of a standing militia, it had been further narrowed to prevent arms which were not of reasonable military purpose (I don't like that decision because it seemed to contradict some others, to me). Later that was expanded to include automatic weapons.
4. Heller and McDonald, decisions of an (in my mind) extreme reactionary court, ignored prior decision and incorporated an invented individual right upon the state BUT, and this is the truly important part, BUT they were not so bold as to say that this right was unlimited DESPITE the text of the 2nd Amendment. They felt that it was like the 1st, that it could be "subject to regulation" to use your term - though such regulations were laws. I believe they did so because they KNEW a decision to suddenly make nerve agent, machine guns, fighter jets, artillery pieces, etc.. available to civilians would invalidate their ruling on its face and because they didn't want to create such an unsafe society and because they truly did believe the limits on speech were proper so why would such similar limits not be proper here?
5. Here's the most important of these points, the TEXT of the 1st and 2nd Amendments clearly prohibits any limitation. That text is abundantly clear and many of the far right fringe of this country seem to feel that text stands alone, even going so far as to suggest on portion of a dependent sentence stands alone. That wasn't true at the time of its drafting, let alone now. The founders very clearly understood that acts which were seditious were impermissible. But, even if they didn't, 240 years or so of juris prudence has made it clear that the court, from Madison forward, would act to define those rights. Jefferson absolutely understood this point - go read the text on his memorial if you see it otherwise. Further, the court has made it FACT that it could and would narrow or expand those rights as society evolved because the rights themselves were not handed out with instructions on how to interpret them but rather only with instructions on how to allow for their interpretation and WHO could interpret them. In short, the framers made it clear the constitution was and is a living document, subject to interpretation and once interpreted, those rulings were how the law must work from that point forward.
Consequently, Mike, interpretation by SCOTUS is permitted. The 2nd Amendment isn't inviolate, not even by Congress (to whit, the Brady Bill). I believe you know this, which is why you cited Scalia's dicta indicating reasonable limits are allowed, but I believe as well that you can't come to writing it. You somehow see the original text and think it means "no changes/no limits" and want to parse that as not the same as "regulation" and so "regulation" is allowed. Regulation is law, regulation is limitation. Long and short, Mike, SCOTUS gets to interpret. It should not invent (such as inventing the right to hunt by looking at the Federalist papers), but it very much DOES get to interpret, including interpreting that ANY right may be constrained, if SCOTUS wants to. You may disagree with it, but then you are arguing against yourself and you are arguing that Ted Kaczinski or Khalid Sheik Muhammed should have been allowed to own nerve agent. I don't think you feel that way, but no if infringement means NONE, nothing, then anyone, citizen or no, could own anything, even felons, even the insane.
Pen, while you should by all means continue the discussion - to give it more credibility than it deserves - if you wish, let me highlight WHY I responded as I did.
DeleteHansberry made the assertion (one wrongly made by conservatives on a regular basis) that rights were absolute, and could not be limited by government.
I responded substantively.
Hansberry responded by trying to redefine the discussion in a ludicrous direction with his comment about all publications. ALL was never part of the discussion, and that KIND of redefinition of the discussion is the sort of response I would expect from a not very bright 5 year old who recognized that he had argued himself into an untenable position. It is dishonest when done by an adult.
The first time, I opted simply to ignore that insulting and disrespectful response, and continued to be substantive. But Hansberry returned to his game of silly buggers, which leads me to believe his repetition of the same failed argument with you is just more of the same.
Therefore I concluded that absent any mmore honest and substantive reply from Hansberry, it is respectfully time to discontinue his drivel as a waste of our time and of our readers attention. He is not really trying to have an honest and intelligent discussion here.
(continued)
ReplyDeleteThere is a difference between an honest and forthright determination of the scope(limit) of a right versus Congress taking upon itself to limit that right. For example, laws against counterfeiting do not infringe the freedom of the press. But an act of Congress that forbade publishing of books or pamphlets without prior consent from the government would infringe on the Freedom of the Press as it has been understood in the US from the beginning.
Those who advocate placing limits on the right of the people to keep and bear arms by way of ordinary legislation abetted by like-minded courts rather than by amendment to the Constitution had better hope that the courts stop at the Second Amendment and don't become too enamored with the raw power to grant and take away rights as they please, or else the rest of the Bill of Rights might see the same fate. Allan Dershowitz made the same argument a long time ago; it fell on deaf ears then, and so I do not expect it will be well received by the Left now.
Having witnessed the praise from the left heaped on the States Rights interpretation of Hickman, and later the Collective Rights interpretation of Silveira(both 9th circuit), followed still later by the limited Individual right espoused by the dissent in Heller, it seems to me the Left will stop at nothing. There seems to be no falsehood too ridiculous, no claim too brazen, all that matters is the goal of disarming the people. Apparently even the watered down version of the right of the people to keep and bear arms delivered by the Heller court is too much for the Left to bear.
Had the Left started the conversation some thirty or forty years ago in an open and honest manner, rather than by attempting to deny the individual right to keep and bear arms by hook or by crook, the conversation you say you now want to have would be much further along.
Rubbish.
DeleteCongress can enact any restriction legitimately that is upheld by the SCOTUS.
You are just attempting to limit legitimacy to what you personally prefer - and that is inherently dishonest intellectually.
Mike,
ReplyDeleteHonestly, I don't quite know what to do with you. On the one hand, you say (incorrectly unfortunatetly) that it is not constitutional to infringe on a constitutional right. That's untrue, and even the founders agreed. Freedom of speech, for example, did not extend to advocating for the violent overthrow of the government.
In the next paragraph you refer to Heller as reflecting that current "regulations" were permissible(one man's regulation is another man's infringement, my friend, especially to those '2nd Amendment' types). Now, I happen to agree that in this in Heller, the court was fundamentally correct. However, these aren't "regulations" they are laws, and in such, represent a challenge to the idea of incorporation IF the stipulation of the 2nd Amendment is beyond reproach as far as Congress goes. Yet, in Heller, SCOTUS wants to eat it's cake and have it too. For they intend to incorporate (actually via Mcdonald) yet say "it's not a suicide pact" in effect and more importantly, say state's may still limit. Well, which is it, no infringement or some?????
Clearly the answer lies in that some IS permitted. On that, it seems, we clearly agree.
As far as "open and honest" goes, Mike. 30 or 40 years ago the "right" you claim wasn't a right. It was made such by the ignoring of Stare Decisis. It was made such by an activist court inventing a right to hunt, a right no where referred to in the Constitution. Still, being a FAR better man/men than Scalia will ever dream in his endless dream of being, I, and MANY MANY on the left now do so recognize that because it has been ruled, it is, for now. Will you stipulate to the same, that laws constraining such rights are constitutional?
Penigma,
DeleteYou said: "you say (incorrectly unfortunatetly) that it is not constitutional to infringe on a constitutional right. That's untrue, and even the founders agreed. Freedom of speech, for example, did not extend to advocating for the violent overthrow of the government"
I agree that freedom of speech did not extend to advocating violent overthrow of the government, however that means that laws regulating such conduct did not infringe the freedom of speech.
Do you believe Congress can require prior restraint on all publishing? If you do then the Bill of Rights is less than a parchment barrier.
As before, the proper question is -what is the scope of the right? Not -may Congress infringe a right guaranteed by the Bill of Rights?
Which Supreme Court decision do you imagine the Heller court ignored?
Assuming you will, outside your seeming dichotomous argument, then let's us focus on the actual point.
ReplyDeleteUntil Mcdonald, no individual right, at the state level, existed. That's why the middle, the left, jurists, legal minds of all caliblre, didn't grant that point. It was the point of the extreme right, made real by activists.
Yet, it is a right now, not 30 years ago, but now. Don't blame anyone for not granting it 30 years ago, it was invented NOW, not then.
But, since we agree that it is a right, but like any, subject to limits, why then do I persist in pointing out those limits? Let's assume you'll desist with incorrectly claiming that constitutional rights can't and aren't limited and focus on those limits.
Is it constitutional for a state to ban high capacity magazines. Clearly yes, the Brady Bill survived challenge and it would survive re-interpretation under McDonald. But I want to hear YOU, the spokesperson for the RIGHT say it, not me. For it was not the left which was nor is intractable. They were and are the better men, they will respect Stare, and it is THAT respect which saves your rather meaningless right, make no mistake. It is the act by those who will be BETTER than will those on the right, which saves the right.
Second, is it constitutional to ban weapons which are able to fire one round per trigger pull with no other action required by the shooter and which are either reloaded by spring recoil or gas assisted recoil? Again, I would say yes, but I want to hear what YOU say, Mike.
For you see, you've been maneuvered into admitting that such limits ARE.
And in that, we agree. Further, while you may not admit it, I will say the concern about "gunz" is such a distraction. Unless you have an annual income above about $350k/year or wealth above about $11M in total, you vote against your interest and for the donor class over this issue. You think it's actually important. You think your gun keeps you safe when it does not, not by any measurable social evaluation metric. It is my fervent hope that we, the United States, can someday come to grips with the fact that our love affair with violence and our love affair with guns are part and parcel of the same thing. When we recognize M16 "looking" rifles are merely just penis substitution for our own feelings of failures, that they make us no more powerful than does owning a spittoon (sic), and that it is that love affair which begets greater violence, then we'll change. So, I seek to withdraw the "sex appeal" from firearms. They are no more a solution to violence than is ice to an alchoholic. They may not cause violence derectly, but they make it seem plausible, well that and the siren of the NRA. They make it seem right, to act out. So, if you can only carry around your 12 gauge or your revolver - maybe it will mean it just doesn't seem quite so sexy any more. And maybe it will mean cops will feel safer too, and like the cold war coming to an end, maybe we can de-escalate the violence. It certainly couldn't hurt to try.
Penigma,
DeleteYou said: Until Mcdonald, no individual right, at the state level, existed.
And once again you are wrong. The right to keep and bear arms was protected at the state level under the various state constitutional provisions. The Supreme Court in Miller did the usual review of state constitutional provisions (that is what the supreme court typically does when trying to determine the scope of a right expressed in both federal and state constitutions) to examine the scope of the right guaranteed by the second amendment. Had the Heller dissent done the same, there would have been no controversy. Instead Stevens insisted the right to keep and bear arms of the second amendment was different than the right expressed in the state constitutions and he simply discounted the meaning of the right as was held by the various state supreme courts.
You are correct that the second amendment was not "incorporated" until McDonald, but what point are you making? Are you claiming that Incorporation doctrine itself is a fraud? Or are you claiming that the second amendment was not intended to be incorporated by the framers of the 14th amendment?
Penigma asks: Is it constitutional for a state to ban high capacity magazines?
DeleteHigh capacity magazines certainly fit the definition of "arms" under Aymette and US v. Miller, so I would say not, and any justice with a sense of respect for Stare Decisis must agree.
Penigma asks: is it constitutional to ban weapons which are able to fire one round per trigger pull with no other action required by the shooter and which are either reloaded by spring recoil or gas assisted recoil?
Again the answer is no. Such weapons clearly meet the meaning of "arms" under US v Miller, and they have been in common use by the public for many years.
What was "invented" 30 years ago?
The theory of incorporation? Hardly.
The individual right at the state level to keep and bear arms? Again, hardly, that right existed from the beginning of this country. Read the earliest state court decisions, they read the right protected in the second amendment to mean much the same as the right to bear arms protected in their own state constitutions, and they read it much more broadly than Justice Stevens.
Your closing paragraph gives away your position. Your hatred of guns is overtaking your concern for the constitution.
My Opinion:
The right to keep "arms" as defined in US v Miller (citing Aymette) must not be infringed. The states might pass laws regulating the bearing of such arms (carrying outside of the home) but I do not think laws which completely ban the ownership of high capacity magazines would be constitutional.
Then there would have to be some discussion of what is "high" capacity, and what is in common use today?
The Heller and McDonald decisions did not overturn Miller's definition of "arms" necessary for the common defense. Instead they defined those arms which are protected insofar as they might be used for self defense. That distinction might allow the states to pass laws regarding how firearms with high capacity magazines could be carried, for example they might say that firearms with high capacity magazines must be carried openly(see Aymette). But a complete ban on bearing such arms would be unconstitutional(again see Aymette).
DG, I may agree (and do in fact) with your general premise that Heller is basically flawed but, for now, what it DOES mean is that it IS a constitutionally protected right (it being the individual right to keep and bear). The point being, once defined, it's self-fulfilling much like the word of the King being law. Once uttered, whether for ill or good, it IS. So, until undone, it is constitutional prima facia. Whether it should be is the thrust of your discussion with Mike, but less so mine. Mine is much more concerned with having someone on the right admit that Heller makes it perfectly acceptable to limit magazine capacity and semi-automatic weapons. There is no substantive challenge before the court on that matter (and there certainly COULD HAVE been), despite the laws on the books in California and Connecticut (among others) And the reason, no matter what the NRA or chuckle-heads like Mitch may say, is that the right/2nd Amendment misinterpretation crowd knows full well Heller and McDonald laid out very clearly that such limitations WERE permitted.
ReplyDeleteMike, your logic is not. Heller suggests and McDonald clearly permits laws restricting types of firearms. Consequently, the 2nd Amendment can be limited, just as the 1st can be and is. As the saying goes, "the constitution isn't a suicide pact."
ReplyDeleteGet your facts straight please. If you think the 2nd Amendment cannot be limited, how do you think Connecticut "got away with it" after Sandy Hook (which was AFTER Mcdonald)? The answer is this, because they could in fact limit the 2nd Amendment, so long as such limits were "reasonable" to quote Scalia. If Connecticut had attempted to do so after McDonald (in your eyes) so CLEARLY prevented any such limit, it would have been immediately struck down. It wasn't because the limits Aren't unconstitutional. Ipso facto, 2A can be abridged so long as it is reasonable, when we are talking about the individual right.
That's not hard, but you seem to fail to grasp it.
As an aside, I hope you didn't suggest you can bring your own arms to a National Guard unit for the purpose of arming yourself. You ABSOLUTELY may not do so. Beyond violating the Geneva Conventions, it would represent a lack of physical security and control for that unit. No chance, no way, no how. If you ever hear of it the person is lying or the commanding officer is a red-neck fool.
Penigma,
DeleteCan you really not grasp the difference between ascertaining the scope of a right guaranteed by the Bill of Rights versus infringing a right guaranteed by the Bill of Rights?
You do make a valid point in that the courts have over the years expanded the definition of certain rights. For instance the Freedom of Speech has been greatly expanded, and few complain because who is against expansion of rights? But what if Congress and a rubber stamp SCOTUS decided to do away with the freedom of speech altogether by reinterpretation? Would you consider that a legitimate exercise of the authority entrusted in those institutions?
Lastly your continued insistence that the Individual right interpretation was invented by the Heller court is just plain obstinance on your part. As discussed earlier, the state courts interpreted the right to keep and bear arms as an individual right long before the Heller court, or anyone sitting on that court, existed. To the contrary, Stevens' "militia only" claim was demonstrably not the predominant view (only one judge in all the early state court cases and one minor commentator). The two views that pervaded the early state court decisions were the broad individual right and the Political Right interpretations. Moreover these views, rather than diverging, converged. The extremely broad individual interpretation of the first state decision, Bliss v KY, was narrowed by the people of Kentucky with a change to their constitution allowing regulation of concealed weapons. And the somewhat narrow Political Right view of Aymette v TN was broadened by a subsequent decision (Andrews) of the TN supreme court finding a right to keep arms for self defense alongside the great political right described in Aymette.
Heller is to US vs Miller, as Andrews is to Aymette. There are close parallels to these decisions. The accused in both Miller and Aymette were ne'er do wells who evoked little sympathy from those courts. However the accused in both Heller and Andrews were men of good standing in their communities who claimed a right to protect themselves and their homes.
While there is some variation among the various state right to arms provisions, nearly all guarantee an individual right to keep arms for self protection. So one can hardly say that the Heller court invented that interpretation, or that the scope of the right to keep and bear arms has not been thoroughly examined and determined.
Caetano!
Penigma,
DeleteI harp on this issue because there is an important distinction between ascertaining by means of thorough study the scope of a right guaranteed by the Constitution on one hand, and infringing that right on the other. Those are two very different things.
There are many claims made by the anti-gun side which I disagree with, but this issue is particularly galling as it undermines all individual liberties.
Is it not enough that the antis try to convince the people that they have no individual right to keep and bear arms? Must they argue that all of our constitutionally guaranteed rights can be infringed at the will of Congress? Must they miseducate the public regarding fundamental concepts in order to aid their misguided efforts to tear down a particular right which they fiercely disagree with?
Mike,
DeleteYou appear to be claiming that "ascertaining" and "infringing" are different things. My comment to you is "one man's freedom fighter is another man's terrorist." There is NO distinction between the two when both points limit the right. Your comment about expanding the 1st amendment is a canard and specious. We're talking about limiting, or INFRINGING, the 1st Amendment by way of saying you may not yell "fire" in a theatre. That may be "ascertaining" to you, but it is also clearly a LIMIT and in so, an infringement. Saying that you may not own a semi-automatic rifle may be an infringement to you and to me it's a reasonable limit.
Also, I didn't claim that an individual right didn't exist prior to Heller precisely as much as I made the point that CONSTITUTIONALLY it didn't. It wasn't incorporated until McDonald (NOT HELLER fyi). In point of fact in many respects any state law or ruling was probably unenforceable on any other state without SCOTUS' support so what might have existed in one state didn't exist in another. So what are we talking about here, a state law or the 2nd Amendment? Pretty clearly we were talking about the 2nd Amendment and equally clearly, any state which by itself interpreted the 2nd Amendment to support an individual right was AT BEST ahead of itself given that SCOTUS had previously and CLEARLY said otherwise. So yes, Mike, prior to McDonald, as a constitutional matter, the individual right had not been affirmed and not been incorporated and if you doubt that, I suggest you read the dicta from both.
Where we stand on this is this, it's moot whether it WAS, it now IS. There are no "anti" people here, so your ad hominem is pointless and off mark. I accept that it IS now a right (until overturned but still, a right). What you seem to ignore and continue to ignore, is that reasonable limits are allowed. You seem to refuse to want to grant that Connecticut passed a reasonable limit, you seem to want to claim it's impermissible infringement but you can't articulate WHY it's impermissible except to say NO infringement is permissible. Yet, we know from McDonald reasonable limits ARE permissible.
So, here's the $64k question. Why is a ban on high capacity magazines not a reasonable limit on the individual right to personal security, self-defense, and hunting as expressed under McDonald? Please don't regurgitate some blather about a distinction between infringement and "ascertaining." That's flat out nonsense. Not being allowed to own Sarin gas is a LIMIT, not being able to own a semi-automatic rifle is a LIMIT, not an expansion. So what makes one limit constitutional and the other not. That's the question, and the ONLY question, that matters until Scalia is replaced and McDonald is revisited. Then all the rhetoric about prefatory clauses can be argued again, but for now, THAT's the question. Please address that. It's the heart of the matter and you need to do so in order to have this discussion move forward.
Mike,
ReplyDeleteI've published two of your comments, which I'll address in order. I want you to know I did not publish the third because it was redundant and while we often allow such redundancies, it's gotten a bit silly at this point so I'm asking you to stop trying to argue semantics about absolute construction. You misquoted one of our authors in your attempt to "win" and in so doing, lose the right to persist past your 10th or so post on it.
Penigma,
ReplyDeleteFor answer to 64K question, see last two paragraphs of my response at March 18, 2016 at 6:28 PM.
How do you know if a particular law infringes on a right if you have never determined the scope of that right?
Why did SCOTUS refer to the Aymette decision (a state court decision) to determine what was meant by "arms" in the right to keep and bear arms?
Why did SCOTUS determine the meaning of "arms" in the second amendment before considering whether possession of a particular instrument was protected?
Mr. Hansberry you continue to beat dead horses.
DeleteRepetition is not improving the validity of your arguments. Please move on to a new argument.
Please address the other arguments you have ignored or side stepped, such as the context of militias at the time the constitution was written and ratified. In that context you should address the conflicts such as the Yankee Pennamite wars.
The SCOTUS HAS established the scope of the 2A, over and over, in the many stare decisis decisions. That the exception to that rule is a few decisions by conservative activist judges who took money from the NRA for speaking gigs, and who - especially in the instance of Scalia - LIED at their confirmation hearings about rigorously following stare decisis. I would argue that it was the intent of Scalia and Thomas, if not Alito, to change this 2A interpretation in service to the new political bent of the NRA that took place in the late 1970s. It is a very selective reading of history, a very dishonest one that ignores the considerable body of evidence that refutes the 2A as an individual right, and that it is the opposite of being an originalist interpretation of the Constitution.
Now - what is your legal background (a question which goes to your understanding of the law, and to you simply repeating an argument you saw somewhere else without fully understanding either the argument you espouse or the larger body of scholarly work both pro and con, a very shallow and narrow understanding).
Again - come up with new arguments, your existing ones are invalid and weak, even limp.
Also, you might find it helpful to read this timeline piece on when and how the ridiculous arguments were contrived that the 2A is about an individual right not militias.
Deletehttps://www.washingtonpost.com/world/national-security/nra-money-helped-reshape-gun-law/2013/03/13/73d71e22-829a-11e2-b99e-6baf4ebe42df_story.html
I would also refer you to the considerable history of state and federal decisions that are consistent with the 1903 Militia Act, which formalized that the ONLY militia that is recognized by the government is the National Guard, and that other guys hanging out with guns are not militias, they're just guys hanging out with guns, often illegally - like those at the Malheur refuge. The 1903 Militia act also addresses the funding and ownership by the government of those militia arms, not private weapons.
Find a new horse, dead or otherwise to beat, Hansberry.
dog gone,
ReplyDeleteI will simply direct you my previous statements on the topic. Surely you can respond as to why they are weak.
For discussion of Presser and Cruikshank see my post at Mar 1, 2016 7:18PM.
For discussion of US v. Miller see my posts at March 5, 2016 at 9:33 AM; March 18, 2016 at 6:28 PM; as well as several other posts on this thread.
Ah, but the WaPo should not have given all credit to the NRA, as Saul Cornel and Nathan Kozuskanich deserve a great deal of the credit for debunking the collective right theory. Of course the Heller dissent deserves some credit as well for putting a stake through the heart of the collective rights theory by holding that there is an a right to keep and bear arms that can be enforced by individuals.
Your previous statements don't hold up.
DeleteI doubt you read the wapo piece as it does not give all the credit to the NRA.
The Heller dissent hasn't put a stake through collective rights theory; far from it - and that is the core issue here. The existing dissents have still resulted in subsequent upholding of restriction and regulation, and are far from being regarded as definitive or the final word. They are at best a recent word.
So far you have failed to address the 1903 Militia act, the context to the 2A such as the Yankee Pennamite war, and you have failed to address your own background in the law.
Additionally you have misrepresented the work of my colleague Laci. And you have failed to address the Cornell link which demonstrates that the absolute construction on which you rely is...........well, in legal circles, far from absolute anything, but rather it is one legal theory, not the definitive theory. To be definitive requires a long consensus of opinion and precedent.
Your opinions haven't been very good, so I see no reason to revisit them, as they appear to be limited to you repeating someone else and not legitimate individual scholarship of any merit.