Sunday, September 15, 2013

So you've found an obscure law and you think it proves your point???

In this case, The Northwest Ordinance of 1787, the complete text of this document can be found here.

The proper name of this is An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, and also known as the Freedom Ordinance or "The Ordinance of 1787", was an act of the Congress of the Confederation of the United States, passed July 13, 1787. The primary effect of the ordinance was the creation of the Northwest Territory, the first organized territory of the United States, from lands south of the Great Lakes, north and west of the Ohio River, and east of the Mississippi River.

OK, do you see a few problems here with trying to claim it is law under the US Constitution?

Next we come to the part that the gunloons like to claim supports "their" position, Article 3, which they quote only part of the article, which is:
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

The hope is that people who say that the syntax of the Second Amendment means that the proeme (prefatory clause) controls the "operative" clause will be confounded.

Nothing of the like here since the above is only one sentence of Article 3, which says in its entirety:
Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
Now, do you see some additional problems with trying to analogise the Second Amendment to the Northwest Ordinance of 1787?

If anything it helps make my point that laws can become obsolete due to changes in the Institution.

You can learn more than you ever wanted to know about this document here.

As for the grammar of the Second Amendment--I've posted this several times before, but it needs to be repeated since some people can't get their minds around the concept.
In the case of the Second Amendment, the first clause announces the purpose (from Adam Freeman's Clause and Effect) :
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.
The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”
Diagramming the Second Amendment, one should end up with something that expresses a causal link, like: “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” In other words, the amendment is really about protecting militias, notwithstanding the arguments to the contrary.

In his Rudiments of English Grammar (1790), Noah Webster writes that “a nominative case or word, joined with a participle, often stands independently of the sentence. This is called the case absolute.” Webster gives several examples, including, “They all consenting, the vote was passed.” He explains, “The words in italics are not connected with the other part of the sentence, either by agreement or government; they are therefore in the case absolute, which, in English, is always the nominative.” Grammatical independence, to Webster, is not about political self-determination, it's all about the nominative case. But he would acknowledge without hesitation that the vote would not have passed without the consent of the voters.

Webster’s readers would have had no difficulty recognizing that the Second Amendment also begins with an absolute. They would have studied the absolute in school, and they had probably been tested on it in a federalist-era version of No Child Left Behind.

Any educated federalist also would have learned in school that government, in grammar, merely refers to the case of a noun – its inflection as a nominative, dative, genitive, accusative (or, in the case of Latin, an ablative). As Robert Lowth, the author of the most widely-studied school grammar of the time, put it, “Regimen, or government, is when a word causeth a following word to be in some case, or mode.” For example, prepositions cause the following noun or pronoun to take the dative case. Or as the schoolbooks liked to say, prepositions govern the dative. That’s why we say, “Give the gun to me,” not, “Give it to I.”

Anyway, since the clause "a well regulated militia is necessary to the security of a free state" announces the purpose for the right, We need to go back to the citation from Blackstone regarding the “proeme, or preamble” since it is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at 58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at 61.
If anything, this argument works best on people's historic ignorance, as does most of the gun loon argument.


  1. I would have taken you argument more seriously if you left out all of your person contempt for those that believe differently than you. The better argument would have been what the Founding Fathers really meant when they wrote the Second Amendment. Using just the basics, the Constitution was written to control the government via the power of the citizens. So there should be no question that the Second Amendment restricts the government from disarming the citizens. There are also many writings from Mason, Jefferson, Franklin, and others that make it clear their intentions in the Second Amendment support this. Ever wonder why this was the second Amendment created? It was (and is) that important.

    1. Totally wrong, Denube.

      The 2nd Amendment was entirely a compromise between those who wanted a professional full time standing army and those who did not, do to budget differences. It was written ENTIRELY about how to handle future defense and paying for it. In that regard, standing armies won, historically.

      In point of fact, if you knew your American history, the Founding Fathers did not anticipate any acceptable or valid occasion for armed rebellion against the government they were setting up. Revolution in the context they engaged in it was specifically and exclusively for instances where there was zero representation in government, and even then only in extreme cases.

      The Constitution itself, and the 2nd Amendment arose because the original articles of confederation had failed, and the Founders needed something stronger to deal with the armed insurrection of Shay's Rebellion. The response of George Washington was to put down the subsequent Whiskey Rebellion with armed force as well.

      And Thomas Jefferson, who wrote the ill-advised but oft-quoted comment about the tree of liberty and martyrs? HIS response was that those who engaged in insurrection should be hanged, and that those who rebelled were just ignorant, and would learn by the hanging examples, and should be further re-educated -- he saw insurrectionists, those who would attempt to 'restrict' their governments using arms -- as idiots, fools, and the gullible ignorant unwashed who were led astray.

      So, I think there is ample precedent for that contempt for those who do not understand why the 2A was created --- which is amply illustrated by the 2nd Vice President, Elbridge Gerry, in his statements to congress about it.

      And if you had any further doubt, the Potter case made it abundantly clear that ONLY the National Guard constitutes a valid militia, that armed posses or 'unorganized militias' or any form of private army is ILLEGAL, that actions by them are illegal (and possibly treasonous), and that what the term 'unorganized' militia refers to is the draft pool for the National Guard - now merged into the military generally, and largely superseded by the Selective Service registration.

      I don't know who misinformed you, but Laci is a lawyer who knows gun law better than most people on the planet, and he knows his history as well. He is meticulous as a legal scholar.

      Do your homework, better, before you presume to lecture him on facts.

    2. You should be reminded that the Constitution is very clear, btw, that armed insurrection is making war, declared or undeclared, on the United States, and therefore constitutes treason.

      NOWHERE does the U.S. government, in any local, state, or federal statute, charter or constitution recognize or approve or endorse any right of arms against the government.